Calcutta High Court Hemanta Koley-vs-State Of West Bengal on 28 July, 1999
Equivalent citations:(2000) 1 CALLT 250 HC, 1999 (2) CHN 745, II (2000) DMC 158
Author: G Bhattacharjee
Bench: G R Bhattacharjee, M K Basu
G.R. Bhattacharjee, J.
1. This criminal appeal is directed against the judgment and orders of conviction and sentences passed by the 1st Addl. Sessions Judge, Hooghly in Sessions Trial Case No. 75/1988. Charge was framed against the appellant/accused under 3 heads, one under section 302 IPC for murder of his wife Malatl Koley, the other under section 201 IPC for causing disappearance of certain evidence of the said offence and the third one under section 498A IPC for subjecting his wife Malatl Koley, since deceased, to physical torture. The learned trial Judge convicted the appellant under all the heads of charge and sentenced him to rigorous imprisonment for life for his conviction under section 302 IPC and also a fine of Rs. 2.000/- i.e. to R.I. for 6 months. He also sentenced the appellant to R.I. for 7 years and a fine of Rs. 1,000/- i.d. to R.I. for 1 year for his conviction under section 201 IPC and also to R.I. for 3 years and a fine of Rs. 5,000/- i.d. to R.I. for 3 months for his conviction under section 498A IPC with the direction that all the substantive sentences will run concurrently. Being aggrieved by the conviction and sentences the appellant has preferred the present appeal.
2. The FIR was lodged by P.W.I Anil Kr. Das, the elder brother of the deceased Maliti at Chanditala P.S. on 3.12.86 at 12-15 p.m. In the FIR it is stated that his sister Malatl and the accused Hemanta Koley were married in the month of Jaistha, 1393 B.S. and they used to live together at Jagannathbati village while her mother-in-law, her husband’s elder brother and sisters used to reside in the house of the maternal uncle of the accused in Mashat-Kadamlala and that in the month of Bhadra last his sister’s mother-in-law came to her house on the occasion of ‘Pitha Parban’ and at that time his sister was unwell and could not do the work of ‘Pitha Parban’ and on this pretext the accused assaulted his wife severely and since then the accused often used to assault and even did not give her food etc. It is further stated that only 15 days back the accused brought his wife at Gangadharpur Bazar by bus and left her there stating that she should bring the gold necklace when she would come back home otherwise she would not be allowed to enter the house and he did not accompany his wife to the house of the informant and that 7 days back the sister of the Informant went back to her husband’s house accompanied by her third brother Chandu and on 3.12.86, that is, the date on which the FIR was lodged, at about 8-00 a.m., Bacharam Santra, the maternal uncle of the accused came to the house of Informant and stated that the sister of the informant could not be traced out and on hearing this news the informant alongwlth his nephew Banbehari Das (P.W.2) and mother went to Jagannathbatl and found that his sister was lying dead in the courtyard in front of the room of the accused and they came to know from Mohan Adak (P.W.8) and other persons of the village that at first the accused said to the people of the village that she might have been drowned in the pond and then Mohan Adak, Sibhu Hall and Sukdev Bag got down Into the water and traced out and lifted the dead body of Malati from the water and placed the dead body on the courtyard of the accused. In the FIR it is also stated that mark was seen on the chest of the dead body and on being asked the accused confessed that on that day, that is. 3.12.86 at day break he strangled Malatl to death and threw her In the pond.
3. P.W.1 Anil Kr. Das is the informant who lodged the FIR. He speaks about the marriage of his sister Malati with the appellant accused. He says that after marriage his sister used to live in her matrimonial home and for about one year they lived happily and there-after the trouble arose. He further says that the mother and sister of the accused used to live sometime in the house of the accused and some time in the house of his maternal uncle at Moshat. He says that the accused Hemanta did not provide his sister with proper food and also did not maintain her properly. His evidence is that on the date of death of her sister, the maternal uncle of the accused came to their house and enquired whether her sister had come to their house at 7-00 a.m. and told that she was missing and also asked him to go to the house of the accused and then he and his nephew Banbehari went to the house of the accused and about 10/15 minutes thereafter his mother Smt. Aloka Das (P.W.3), his brother Chandu and his older brother’s wife Renukabala Das and the wife of Chandu Smt. Chhabirani Das went to the house of the accused and they reached the house of the accused by 8-00 a.m. and saw that the dead body of Malati was lying on the courtyard. He speaks of the existence of a ‘ghat’ by the side of the courtyard of the accused. According to his evidence, the accused Hemanta was not in the house (at that time). He saw marks of red acchymosis on two sides of her breast and on her throat. He further says that they brought one doctor from Krishna Rampur market and the doctor after examining her told that Malati was murdered by throttling in his cross-examination he says that the accused Hemanta is a hawker and he used to sell stationary goods in the villages. P.W.2 Banbehari Das is the nephew of P.W.1. He says in his examination-in-chief that the accused has good relationship with his wife Malati. His evidence is that more than 6 years back in the month of Aghrayan at about 9-00 a.m. P.W. 1 Anil told him to accompany him as his sister was missing and then he and P.W.1 went to the house of the accused on cycle and the mother of Anil and others also went to the house of the accused later. He says that on going to the house of the accused they saw that Malatl was kept lying on the courtyard and froths mixed with blood were coming our of her mouth and he also saw 5/6 red acchymosis on her chest and he became suspicious. He also speaks about coming of a local doctor to the place. He says that on going to his dispensary, he asked the doctor about his opinion and the doctor told him that he was not in a position to say about the causing of death of Malati. He says that he next went to the P.S. and police came to the place of occurrence and prepared an inquest report which he signed. He further says that from the assembled people he came to learn that the dead body of the victim was recovered from the pond. P.W.3 Smt. Aloka Das is the mother of the deceased Malati. She says that after 1 1/2 year of marriage with the accused, Malatl died in her matrimonial home. She says that the maternal uncle of the accused came to call them at about 6-00 a.m. and they went to the house of the accused and saw that the dead body of Malati was received from the water and kept lying on the courtyard of the house of the accused. She says that after marriage the accused had good relation with Malati. She also says that they learnt from the local men that the victim was killed at night and her dead body was thrown into the pond at night. She saw marks of red ecchymosis on the chest, throat and cheeks of Malati. Her evidence is that on the previous day only the accused and her daughter were in the house of the accused in her cross-examination she says that her daughter (Malati) was not suffering from any ailment either before her death or at the time of death. She says that she does not know who kilted Malati.
4. P. W.4 Swapan Gayen is also a resident of Jagannathbati. His evidence is that on the relevant date they were going to the place of their work and Sukdev Mallick, Sibu Hati were recovering the dead body of the victim Malati from the water of the tank and he also helped them to lift the body. He says that they kept her body lying in the courtyard of the house of the accused. He of course says that he did not notice any marks of Injury on her person. Many people, he says, were searching for her. He says that he left the P.O. before the arrival of the P.W. 1, P.W.2 and their family members. He says that he cannot say how she died. He also did not hear anything in his cross-examination he says that his house is 3/4 minutes’ walk from the house of the accused. From his evidence we get that Panchayat road intervenes between the house of the accused and the pond which is known as Kundu Pukur. P.W.5 Jaydev Adak is also a resident of Jagannathbati. He saw the dead body of Malati lying on the courtyard of the accused. According to his evidence he sent one ‘para’ boy to call the doctor and the doctor came there. He says that froths and some blood were coming out from the mouth of the victim Malati. He says that next he went to the doctor with the accused Hemanta again and the doctor expressed his opinion regarding the death of the victim before them. He however does not say exactly what that opinion of the doctor was. He says that he made true statement before the learned Judicial Magistrate of Srerampore subsequently and Dr. Jagamohan Santra also made statement before the Judicial Magistrate of Srerampore. He also says that the statement made by him before the Judicial Magistrate was recorded by the latter and It was read over and explained to him and then he put his signature there in. He Identifies his said signature which has been marked Ext. 4/1. He says that he made true and correct statement before the Judicial Magistrate voluntarily with-out any coercion. Intimidation or threat. It is the prosecution case that this witness as well as Dr. Jagmohan Santra made statements under section 164 Cr.PC during the Investigation on two different dates and such statements were recorded by Judicial Magistrate. It is to be noted here that this witness does not say in his evidence in court as to what statement he made before the Judicial Magistrate under section 164 Cr.PC in his cross-examination he says that Dr. Jagmohan Sanlra is an Ayurvedlc doctor and he is now dead. This explains the non-examination of Dr. Jagmohan Santra by the prosecution in the trial. He further says in his cross-examination that when they entered into the chamber of the doctor the accused Hemanta was called in the chamber. What he says next is that he does not know how the victim died and who murdered her. He however denies the defence suggestion that he and the doctor made statements before the learned Judicial Magistrate by making conspiracy to implicate the accused falsely.
5. P.W.6 Kishor Kr. Bag claims to have seen the dead body of Malati in the countryard of the house of the accused Hemanta at about 10-00 a.m. when many ‘para’ people had also assembled there. He further says that he did not see any Injury on the body of Malati and he heard that her dead body was recovered from the water of the tank. He says that the accused was not present there at that time. His evidence is that he did not hear from Dr. Jagmohan Santra or Mohan Adak or from any of the para people as to the cause of death of Malati or how she died in his cross-examination he says that his house is 3 1/2 minutes’ walk from the home of the accused. He is a witness to the in quest and he signed the inquest report, in his cross-examination he says that did not read the contents of the Inquest report and he signed the same at the request of the police and he does not know the contents of the inquest report. He says that police had already reached the place before he went there. P.W.7 Smt. Parulbala Koley is a neighbour of the accused Hemanta, her house being only 10/15 cubits away from his house. She says that the accused used to live with his wife by the side of her house. She however cannot say the nature of relationship between the accused and his wife Malati. She cannot say how Malati died. She says that she went to wash her face and mouth in the tank in the morning and on seeing the cloth of Malati she shouted that ‘bouma’ had fallen down in the water and on hearing her shouts the para boys came there. She says that the same tank and the same ghat are used by them, that is, her own family and the family of accused. She cannot say how Malati fell down into the pond. Her evidence is that the body of Malati was recovered from the lank and was kept on the courtyard of the accused. She says that she did not hear from para people how Malati died. She even does not know Dr. Jagmohan Santra. In her cross-examination she says that the said ghat is constructed by split bamboos and the said tank is not very deep but in the month of Kartick and Agrayahan water remains in the said tank. She also did not notice whether the accused Hemanta was in his house or not. P.W.8 Mohan Chand Adak is also a resident of Jagannalhball. His house is about 1 or 2 minutes’ walk from the house of the accused. He also says that the accused had good relation with his wife Malati. He says that one ‘barama’ of Hemanta who deposed on the previous day (presumbly referring to P.W.7. Smt. Parulbala) told that the wife of the accused was missing and that perhaps she was killed and burled by someone. He says that It was about 5-00 a.m. and hue and cry was raised and there were bubbles in the water of the pond and one wrapper (small lady’s shwal) was kept on the ghat of the pond. He says that the said bubbles of the water were at a distance of 2/3 cbts from the ghat of the pond. He speaks about the recovery of the dead body of Malati from that pond. His evidence is that Malati was pregnant for 6 months at that lime. He also speaks about the arrival of Dr. Jagmohan Santra there. He says that the doctor told that the victim was killed by throttling. Jagmohan Santra, he says, is dead (now). He further says that the said ‘barama’ of the accused Hemanta was telling that the accused did not give food to his wife and she used to give her food sometimes, and the accused left the place at that time. His evidence thus shows that the accused was present there al that time. It has to be noted here that P.W.7 (referred to as Barama) however did not make all such statements in her deposition which are attributed to her by P.W.8 Mohan Chandra Adak. P.W.9 Niranjan Bhowmik is a constable of police. He Identified the dead body to the post mortem doctor.
6. P.W.10 Dr. P.G. Bhattacharjee is the doctor who held postmorlem examination on the deadbody of Malati. He found the following injuries on the dead body:
1. Crescentic nail marks abrasion on the right side of the throat.
2. Another crescentic nail marks abrasion on the right side of the throat of the victim.
On dissection he found extravasation of fluid and clotted blood underneath the subcutaneous tissues of the throat and another subluxation of the right corner of the hyoid bone. The doctor is of the opinion that the death was due to the effect of the strangulation, ante-mortem and homicidal in nature. From his cross-examination we find that the deadbody was despatched at 4-00 p.m. on 3.12.86 and the arrival time of the dead body at the dead house was about 11-50 a.m. on 4.12.86 and the post-mortem was held on 5.12.86 at about 12-00 noon. He says that in case of strangulation the crescentic marks are easily found on both sides of throat normally and that he got the said crescentic marks only on the right side of the victim, and he also found nail marks abrasion. It has been submitted on behalf of the appellant that since the crescentic marks were found only on the right side of the throat, this would negate causing of death by strangulation. The doctor’s evidence however does not indicate that in no circumstances the crescentic marks in case of death by strangulation can appear only on one side of the throat inasmuch as his evidence in this respect is qualified by the terms ‘easily’ and ‘normally’. The doctor says in his cross-examination that the victim was having child of about 26 weeks in her uterus. It has been taken from him in his cross-examination that toxamla of pregnancy may develop from 26 weeks or onwards and the mother will loose her sense if she falls from higher to lower level. He further says that if one falls down from bamboo fencing in the pond then such Injuries may be caused. He denies the suggestion that the said crescentic nail mark injuries may be caused as a result for such fall, but says that simulating injuries may happen if the victim falls upon the projected bamboos etc. He says that he did not find any Injury on the chest or breast of the deceased and that if there was any injury in the chest or breast he would have mentioned the same in his report. It has been submitted on behalf of the appellant that the evidence adduced by the prosecution including the Inquest report regarding acchymosis on the breasts of the deceased is thus not supported by the evidence of the post-mortem doctor. It has been on the other hand submitted on behalf of the respondent that since there was some delay in holding post-mortem examination and the acchymosls injuries are not serious Injuries the mere fact that the existence of the same is not supported by the evidence of the post-mortem doctor does not necessarily falsify the ocular evidence on the point. P.W.11 S.I. Swadesh Chakraborty recorded the FIR and started the case. He says that he recorded the oral statement of Anil Kr. Das under his instruction and read over and explained the same to him (Ext.1). He also took up the investigation of the case and prepared the inquest report. He says that he searched for the accused but he was not available and on that day he got the accused at Kestoram-pur Bazar and arrested him. He made prayer before the SDJM. Srerampore for recording statements of Jagmohan Santra and Jaldev Adak under section 164 Cr.PC. in his cross-examination he says that on 30.12.86 Dr. Jagmohan Santra made statement under section 164 Cr.PC before the learned Magistrate and on 5.1.87 Jaydev Adak made such statement before the learned Magistrate. P.W. 12 A.K. Goswami was the sub-Divisional Judicial Magistrate at Srerampore at the relevant time. He says that on 30.12.86 Dr. Jagmohan Santra was produced before him for recording his statement under section 164 Cr.PC and he observed all legal formalities before recording the statement of the said witness under section 164 Cr.PC in his cross-examination he says that on the top of the statement It is noted that he administered oath to the said witness before recording his statement.
7. The accused while examined under section 313 Cr.PC states that there were good dealings between them and in the morning on hearing screaming he got up and that he has been falsely implicated. He further says that she had gone to the ghat of the pond and perhaps after doing some bad act to her she was thrown into the pond. He also says that he told (this to) the para people but they did not pay any heed.
(Editor: The text of the vernacular matter has not been reproduced.
8. As regards the documentary evidence it is to be mentioned that Ext. 1 is the FIR signed by PW.1 Anil Kr. Das and Ext. 2 is the formal part of the FIR. Ext. 3 is the inquest report. In the Inquest report it is mentioned that on the sides of the two breasts there was ecchymosis and blood stained froths were coming out from the mouth and nostril. In the column of the opinion of the witnesses in the inquet report It is Inter alia recorded that the husband of the deceased confessed that he killed his wife by throttling and threw her body in the water which however is not admissible in evidence. Ext. 6 purports to be a statement of Dr. Jagmohan Santra recorded on 30.12.86 by S.D.J.M., Srerampore (P.W.12) under section 164 Cr.PC It is recorded in that statement under section 164 Cr.PC that the accused confessed to Dr. Jagmohan Santra that as on the previous night his wife was unwilling to sexual Intercourse, he beat her and last on being excited he pressed her throat and on hearing some sound coming from her throat he felt that his wife was dying and at down at the time of Ajjan he threw the body of her wife in the pond. It is however submitted on behalf of the appellant that Jagmohan Santra has not been examined in this case and his purported statement under section 164 Cr.PC is not admissible in evidence and cannot be used against the appellant. We have already got that at the time trial Jagmohan Santra was not alive. Ext. 4 also purports to be a statement of P.W.5 Jaydev Adak recorded under section 164 Cr.PC. in that statement of Jaydev Adak purportingly recorded under section 164 Cr.PC It is Inter alia recorded that on being asked by the doctor twice or thrice the accused confessed that as his wife did not agree to have sexual intercourse with him, the accused pressed her throat and at that time some sound was coming from her mouth and ultimately when there was not more sound he himself threw her body in the pond.
9. We have discussed above the evidence on record, both oral and documentary, and we now proceed to consider whether the prosecution have been able to prove the charge of murder of Malati, and other charges brought against the appellant. At the very out set it has to be recorded that there is no direct evidence of murder in the case. The case is mainly based on circumstantial evidence and also on the alleged confessional statement of the appellant. The learned lawyer from the appellant however has contended that the FIR which has been introduced Into evidence in this case is, in fact, not the real FIR and the same should not be considered as such, because according to the evidence of P.W.2 Banbehari, he went to the P.S, and informed about the Incident to the Darogababu orally, but the FIR which has been relied upon in the case was lodged by P.W.1 Anil Kr. Das. This contention of the learned Advocate for the appellant, in our opinion, is without merit, because P.W.2 has said in his evidence that after sometime P.W, 1 also went to the P.S. in the FIR also it is staled that P.W. 1 Anil Kr. Das alongwith his nephew P.W.2 Banbehari went to the P.S. and lodged the FIR at about 12-15 p.m. in the circumstances even if the P.W.2 went to the P.S. before P.W.1 and made any cryptic verbal report that does not become a reason for discarding the FIR which was recorded on the basts of the statement of Anil Kr. Das (P.W.1) in the presence of P.W.2 Banbehari.
10. It has been contended on behalf of the appellant that the statements recorded under section 164 Cr.PC which have been marked as ext. 4 ext. 6 cannot be used against the appellant, because Jagmohan Santra whose statement was recorded under section 164 Cr.PC has not been examined at the time of trial and the other witness P.W.5 Jaydev Adak who also made statement under section 164 Cr.PC does not say in his evidence in court as to what statement he exactly made to the Magistrate under section 164 Cr.PC or what confessional statement the appellant made in his presence. As we have already seen the statement of Jagmohan Santra recorded under section 164 Cr.PC has been marked ext. 6 and the statement of Jaydev Adak recorded under said section has been marked as ext. 4 The Magistrate who recorded the statement under section 164 Cr.PC of Jagmohan Santra has been examined in this case, but the Magistrate who recorded the statement of Jaydev Adak, ext, 4 has not been examined in this case. Jagmohan Santra however has not been examined in this case because he was dead at the time of trial. However, Jaydav Adak has been examined as P.W.5 in this case, but he does not say exactly what confessional statement was made by the appellant in his presence although he made a statement to that effect before the Magistrate who recorded his such statement under section 164 Cr.PC. It is now a settled law that statement recorded under section 164 Cr.PC is not a substantive piece of evidence and the same can be used only for the purpose of corroborating or contradicting the maker of such statement in respect of the evidence he gives in court at the time of trial same can also be used for refreshing memory If the conditions of section 159 of the Indian Evidence Act are satisfied in a particular case. In our present case Jagmohan Santra could not be examined in the trial as he was dead. The other witness Jaydev Adak, although examined in the trial, does not say a single word as to what confession or statement, if any, was made by the accused in his presence. That being so since there is no substantive evidence of the concerned persons in court during trial regarding the confession of the accused the statements in this respect recorded under section 164 Cr.PC (not of the accused but of other persons) cannot be taken as corroborative evidence against the accused on the relevant matter because if there is no substantive evidence the corroborative evidence cannot be looked into. Therefore, we will have to hold that the statements recorded under section 164 Cr.PC so far as the confession allegedly made by the accused in presence of the two persons whose statements were recorded under section 164 Cr.PC to the effect that the accused confessed before them that he throttled his wife to death as sbe refused sexual Intercourse and then threw her body in the pond, cannot be used as evidence against the appellant in the absence of any substantive evidence. But however the question still remains whether the facts, circumstances and evidence on record that the two statements recorded under section 164 Cr.PC are good enough to find the accused guilty of the charge brought against him.
11. It is an undisputed fact that the appellant was the husband of deceased Malati. It is also not in dispute and in fact amply established that they were living together as husband and wife in their matrimonial home namely, the house of the appellant Hemanta and in fact none else was staying in the house. P.W.3 Smt. Aldka Das specifically states that on the previous day of the incident the appellant and her daughter (meaning, Malati) were only in the house of the appellant Hemanta. It has been taken in her cross-examination that her daughter was not suffering from any aliment. P.W.7 Parulbala who is a neighbour of the accused staying at & distance of only 10/15 cubits also says that the accused used to live with his wife by the side, of her house. Thus there is no difficulty in recording a finding that the appellant and his wife were in the house of the appellant in the relevant night and none else was there in the house. As we have seen, it the morning the dead body of the wife of the appellant was recovered from the pond adjacent to the courtyard of the appellant. Some of the witnesses examined in the case, as we have seen, have also stated that they have seen marks of ecchymosis on the throat as well as on the sides of the two breasts of the deceased Malati. They also saw blood stained froths coming out of the mouth of the deceased Malati. The presence of blood strained froths at the mouth and nostril of the deceased as well as of ecchymosis at the two breasts of the deceased have also been mentioned in the inquest report. It has been contended on behalf of the appellant that since the post-mortem doctor did not mention of any ecchymosls at the breasts, the other evidence regarding the same should not be relied upon. In our opinion, that contention is not tenable here in the facts and circumstances of the present case. As we have seen the post-mortem examination was held on 5.12.86 at about noon while the occurrence took place much earlier on 3.12.86. The witnesses who saw the dead body almost Immediately after recovery of the body from the pond and also the police officer who held the inquest at about that time, must have seen the dead body while it was still comparatively fresh and therefore, there is no reason to disbelieve their version based on ocular observation regarding the marks of Injury (very minor though) which were not noticed or recorded at the time of postmortem examination of the dead body held two day thereafter.
12. The learned Advocate for the appellant contends that in this case the vicera of the deceased was not examined and the evidence on record does not rule out death by drowning or by taking of poison. In this connection the learned Advocate for the appellant refers to the decision of the Supreme Court in K. Puranchandra Rao v. Public Prosecutor. A.P., and Allahabad High Court decision
in Lal Singh v. The State . In the said Supreme Court decision the court observed that the facts that the stomach was not filled with water and bloated and no froth was coming out of the mouth of the deceased, are important symptoms which go a long way to exclude the possibility of death being as a result of suicide by drowning. It is submitted by the learned Advocate for the appellant that since in our present case the witnesses saw that froth was coming out of the mouth of the deceased, the possibility of death being caused as a result of drowning cannot be ruled out. It has however to be noted here that witnesses have spoken of blood stained froth and not simple froth. In our opinion, the fact that blood stained froth was coming out of the mouth and nostril of the deceased as spoken of by the witnesses coupled with the marks of violence at the throat of the deceased as found by the doctor and witness as Indicates that It was not a case of death by simple drowning. Rather the facts and circumstances lend support to the evidence of post-mortem doctor that death was caused by strangulation. It is also to be noted that although the post-mortem doctor found crescentic marks only on the right side of the throat, yet in view of the qualifying expressions like ‘easily’ and ‘normally’ as used by the doctor in that context there is nothing to hold that death by strangulation is negated or excluded. in the said Allahabad decision relied upon by the learned Advocate of the appellant, It was held in the facts and circumstances of that case that it was not possible to say for certain that the mark found on the neck was as a result of external pressure brought about by throttling and the law entitled the accused to have the benefit of this dubiousness in regard to the cause of death of the deceased. Having regard to the facts, circumstances and evidence on record in our present case we are however convinced that it is a case of death by strangulation as opined by the postmortem doctor. It appears that in that Allahabad case the medical witness did not find any bruise of the subcutaneous tissues under the contused area of the neck and the medical witness was also not certain as to the cause of death. As we have seen in our present case the post-mortem doctor on dissection found extravasation of fluid and clotted blood under subcutaneous tissues of the throat, etc and the doctor is of the clear opinion that death was due to the effect of strangulation, antemortem and homicidal in nature. in these circumstances as obtaining in our present case the said Allahabad decision does not at all come in the aid of the appellant. In support of the submission that the circumstantial evidence in the case clearly establishes the guilt of the appellant the learned Advocate for the State on the other hand has relied upon the Supreme Court decision in State of Rajasthan v. Mahavir .
13. Now let us focus our attention to the facts and circumstances obtaining in our present case. The appellant and the deceased were husband and wife and they were staying alone in their house. They were also obviously together in their house in the night preceding the morning when the dead body of the wife was recovered by others from the water of the pond adjacent to the courtyard of the house of the accused. Blood stained froth was coming out from the mouth and nostril of the deceased and the witnesses saw not only marks of ecchymosls on the throat but also on the sides of two breast. She was also not suffering from any ailment. Accepting the medical evidence we can safely hold that death was Indeed caused by throttling and it is also evident that after causing death by throttling the body was thrown into the pond. The occurrence of the causing of death must have taken place in the night when only the husband and wife were there in the house. It is true that the exact motive for causing of death of the wife by the husband has not been formally established by evidence as the statements of the two witnesses recorded under section 164 Cr.PC cannot be put to use in this case in the absence of substantive evidence on the point as we have already discussed. But however, absence of motive or proved motive does not necessarily falsify the prosecution case if the facts and circumstances in the case unmistakably point at guilt of the accused. As we have seen, in his statement under section 313 Cr.PC the accused does not deny that he and his wife were together in the house in that night On the contrary, he says that he woke up on hearing screaming and also says that his wife had gone to the ghat of the pond and perhaps after some bad act was done to her, she was thrown into the pond (by some other person). He also says that he said this to the people of the locality but they did not pay and heed. This does not seem to us to be a probable situation in the setting of the facts and circumstances of the case. It is a highly improbable conjecture that the deceased was throated to death by someone else when she had gone to the ghat which was close to their courtyard and the culprit would have thereafter thrown her body into the water of the pond. It is rather a fiction of improbable imagination that when the deceased went out of their room she was assailed by some outsider on her courtyard or ghat causing death and then thrown into the pond. This, in our opinion, is a situation which cannot be reasonably contemplated within any decree of human probability in view of the facts and circumstances obtaining here. The wrapper/cloth of the deceased was found on the ghat as would be evident from the evidence of P.W.7 & P.W.8. This also suggests that there was a camouflage in the matter. Normally It was not expected that before throwing the body of the deceased in the water her wearing shawl or cloth would be separated and kept in the ghat Instead of throwing the same also alongwith the body in the water. It the offence of murder were committed by an outsider he would not have bothered to threw the body into the water after committing murder by strangulation. He would have in all human probability left the body where it was after commission of the murder before fleeing away. And It would not have been necessary for him to lake recourse to any sort of camouflage by throwing the dead body into the pond and yet leaving a wrapper of the deceased on the ghat. The fact that death by throting preceded throwing away of the body into the water and the fact of allowing a wrapped of the deceased to exhibit Itself at the ghat Indicate that the ghat and pond episode was enacted after the commission of the murder to give a colour by camouflage that it was a case of drowning and not a case of missing or murder which camouflage would not have been so much necessary for an unidentified outsider culprit as It would have been for the husband because in the case of death by drowning the husband would have to face no suspicion from anybody whereas in the case of murder he will be prima facie held responsible or answerable by others and will be required to offer some semblance of explanation atleast as to how the murder of his wife could have been committed by an outsider while she was with him or what was the mystery behind her missing at that odd hour of down If It were a case of missing. This exercise of the camouflage to give It a colour of death by drowning clearly points at the guilt of the appellant husband with whom the deceased was there in the house in the concerned night, Inasmuch as an unidentified outsider culprit would not have the necessity of taking recourse to such “an additional exercise of camouflage by taking extra time when he we can feel comparatively safe once he can flee away unidentified. The guilty mind of the appellant is also suggested by his very statement that he told the people that when his wife went to the ghat some one might have committed some bad act to her and thrown her into the pond, because by the time the people had assembled there it must be appeared to him that the earlier conceived simple story of death by drowning would not be acceptable to the people who gathered there, in view of the facts and circumstances and he therefore wanted to associate an unidentified culprit with the commission of the offence when the theory of death by Innocent drowning was likely to project a weak show. It is also not without significance that he was not available when police went there and searched for him, but he was arrested from elsewhere later, as said by the I.O. Having regard to the totality of the facts and circumstances the conclusion is circumstantially Irresistible that It was the appellant husband who caused the death of his wife by throttling and then threw the body into the pond and no other alternative possibility is reasonably conceivable within any reasonable decree of human probability, in the facts and circumstances of the case. That being so we sustain the conviction of the appellant under sections 302 and 201 IPC. As regards section 498A however there is only the evidence of P.W.1 which also is not very specific or precise and accordingly we give benefit of doubt to the appellant so far as charge under section 498A IPC is concerned and set aside his conviction and sentence Imposed by the trial court under section 498A IPC. The conviction and sentence Imposed by the trial court under section 302 and section 201 IPC is however confirmed. Subject to what is recorded above the appeal stands dismissed.
M. K. Basu. J.
14. I agree.
15. Appeal dismissed