Calcutta High Court Sk. Umed Ali-vs-State Of West Bengal on 18 July, 2006
Equivalent citations:2005 (4) CHN 124
Author: P Sinha
Bench: P Sinha, P Datta
P.N. Sinha, J.
1. The appellant being convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 3000/- in default to suffer rigorous imprisonment for one year for the offence under Section 302 of the IPC for murdering his wife Sahida Bibi and also sentenced to suffer R.I. for three years and to pay a fine of Rs. 1000/- in default to suffer R.I. for six months under Section 201 of the IPC for causing disappearance of evidence of the said offence of murder has preferred the instant appeal assailing the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge. Midnapore in Sessions Trial No. XXXI/June/2001.
2. The prosecution story as disclosed in the First Information Report (in short FIR), in short, is that the deceased Sahida, the sister of informant Mahamud Khan (P.W. 1) was given in marriage with the appellant about 10 years back from the date of lodging FIR. In spite of receiving dowry in the marriage the appellant used to inflict physical and mental torture on the deceased Sahida. On 16.3.99 at morning P.W. 1 learnt that his sister Sahida was hanging from a ‘babla’ tree with noose around her neck by the side of river in village North Kalapunji. At morning his father gave one information at the police station and later on collecting detailed information he came to the police station to lodge the FIR alleging that his sister Sahida was murdered by the appellant and another accused Jahanara Bibi and after murdering her the said accused persons hanged her deadbody on the said tree. It was alleged that Jahanara Bibi had an illicit relation with the appellant. The villagers caught the appellant and the appellant made extra-judicial confession before the villagers stating that he and Jahanara Bibi conspired and murdered Sahida Bibi and hanged her deadbody on the ‘babla tree’. When the villagers learnt that appellant had murdered Sahida they being enraged assaulted the appellant as a result of which he was injured and was sent to Pingla Hospital for treatment. On the basis of the FIR lodged by P.W.1 at Pingla P.S. on 16.3.99 at 8.55 p.m. Pingla P.S. Case No. 26/99 dated 16.3.99 under Section 498A/302/201/34 of the IPC was started against the appellant and one Jahanara Bibi. After completing investigation police submitted chargesheet against the appellant and Jahanara Bibi.
3. After commitment of the case to the Court of Sessions it was transferred to the Court of the learned Additional Sessions Judge, Midnapore for trial. The learned Trial Court framed charges under Sections 498A/34, 302/34 and 201/34 of IPC against the appellant and Jahanara Bibi. After the conclusion of trial the learned Trial Court on appreciation of evidence and materials on record held the appellant guilty under Sections 302 and 201 of the IPC and convicted him and sentenced him accordingly as mentioned earlier. The learned Trial Court acquitted the accused Jahanara Bibi in respect of all the charges and no appeal was preferred against order of acquittal of Jahanara Bibi either by the State or by the de facto complainant.
4. We find that in the trial the prosecution in order to prove its case examined as many as 16 witnesses namely, P.W. 1 Mahamud Khan @ Mahammad Khan (informant), P.W. 2 Sk. Malek, P.W. 3 Saidul Khan (another brother of deceased), P.W. 4 Kasim Khan (cousin brother of P.W. 1), P.W. 5 Aziz Khan (father of the deceased), P.W. 6 Abdul Mamud, P.W. 7 Smt. Ashima Das, P.W. 8 Abdul Gaffar Khan, P.W. 9 Sk. Sirajul Islam, P.W. 10 Dr. Debasis Chakraborty (post-mortem surgeon), P.W. 11 Jamshed Mallick, P.W. 12 Jayanta Chakraborty, P.W. 13 Tanaji Das, P.W. 14 S.I. of Police Chandra Bhan Singh, P.W. 15 S.I. of Police Champak Ranjan Chakraborty and P.W. 16 another S.I. of Police Asish Kumar Das.
5. P.W. 1 in his evidence stated that his sister Sahida Bibi was married with the appellant about 13 years back from date of his evidence. Out of the said wedlock one son and one daughter were born to them who are now residing with the appellant. The appellant developed illicit relation with Jahanara Bibi over which there was dispute in the family and as Sahida, the deceased, used to protest against such act of the appellant, the appellant Umed used to assault her. P.W. 1 learnt these matters from the deceased as he stated in his evidence. On the previous day of her death the appellant came to their house and reported that Sahida was untraceable. On 16.3.99 at early morning the appellant again came to their house and reported that Sahida did not return to his house on the previous night. Thereafter, they searched for Sahida and found that Sahida’s deadbody was hanging from a tree on the bank of river Khirai. He found that the feet of deceased Sahida had touched the ground. They found the appellant proceeding towards the field and they called and interrogated him when the appellant made extra-judicial confession stating that he and Jahanara Bibi killed her and hanged her body on the tree as Sahida was the obstacle in his mixing with Jahanara Bibi. His evidence reveals further that thereafter he lodged FIR at the P.S. and police came and seized blood-stained earth and pieces of broken ‘churi’ from the spot where body of deceased was hanging. His evidence further reveals that police also seized blood-stained and controlled earth from the Courtyard of accused Jahanara by preparing a seizure list.
6. P.W. 2, a neighbour of appellant, P.W. 3 another brother of deceased, P.W. 4, a cousin brother of P.W. 1, P.W. 5, father of deceased, P.W. 6 and P.W. 7, co-villagers of appellant, P.W. 8, a resident of village North Kalapunja, P.W. 9 and P.W. 11, co-villagers of informant fully corroborated the evidence of P.W. 1 in their evidence. All of them stated that on 16.3.99 at morning hearing the news that deadbody of Sahida was hanging from a tree they came to the bank of river Khirai in village Kalapunja and found that her deadbody was hanging from a babla tree tied with a portion of her ‘sari’. Their evidence reveals that the feet of deceased Sahida had touched the ground and there were blood-stains under her feet and they also found broken pieces of ‘churi’ there.
7. P.W. 3, P.W. 4, P.W. 5, P.W. 9 and P.W. 11 also stated in their evidence that on 15.3.99 towards evening the appellant came to house of his father-in-law P.W. 5 and informed that Sahida was missing. They in their evidence further stated that in the early morning of 16.3.99 the appellant again came to house of P.W. 5 and informed that Sahida was still untraceable and she did not return to his house on the previous night.
8. Evidence of the aforesaid witnesses reveals that when they were on the bank of river Khirai at the place where deadbody of Sahida was found they noticed that the appellant was trying to escape and some villagers caught hold of him and brought him to village Panchthubi, the village of his father-in-law. The evidence of all the aforesaid witnesses reveals that the villagers interrogated him and the accused made a confession stating that he and another accused Jahanara Bibi killed Sahida Bibi by kicks, blows and fists and strangulation in the house of Jahanara Bibi and after death of Sahida hanged her body on the babla tree. All of them stated that at the place where deadbody of Sahida was hanging they found marks of blood on the ground near her feet and some broken pieces of ‘churi’ near the deadbody. Their evidence establishes the fact that the police visited the house of Jahanara Bibi and found blood-stained earth on her Courtyard and seized some blood-stained and controlled earth from the house of Jahanara Bibi.
9. The evidence of the aforesaid witnesses reveals that when the villagers learnt from the appellant that he and Jahanara murdered Sahida and hanged her deadbody on the babla tree by the side of river Khirai, the villagers became furious and being enraged they assaulted the appellant Umed Ali as a result of which he sustained injuries on his leg and other parts of body and he was admitted at Pingla Hospital.
10. The learned Trial Court on the basis of the circumstantial evidence and the extra-judicial confession of the appellant convicted the appellant.
11. Mr. Acharya, the learned Advocate for the appellant submitted that the entire prosecution case is based on circumstantial evidence. There was no direct evidence of murder of Sahida Bibi by the appellant. The examination of the appellant under Section 313 of the Code of Criminal Procedure (hereinafter called the Code) was not done properly and all the circumstances that transpired in evidence of the witnesses were not put to the appellant. It was not put to the appellant during his examination under Section 313 of the Code as to what elements transpired from evidence of each witnesses and unless all the elements that transpired in evidence of witnesses are put to accused specifically by separate questions, the learned Judge cannot use such evidence and elements against the appellant in his judgment and the elements which were not put to appellant must be excluded from consideration. As the other accused Jahanara Bibi was acquitted the last question put to the appellant that he and Jahanara combined to kill Sahida cannot be used by the Judge in convicting the appellant.
12. Mr. Acharya further submitted that except alleged extra-judicial confession there is no material before the Court to connect the appellant in the incident. When P.W. 5, the father of the deceased at morning of 16.3.99 gave information at police station relating to missing of Sahida Bibi he did not suspect the appellant. The alleged extra-judicial confession is not at all voluntary and no reliance can be placed on such extra-judicial confession. It was obtained by threat, assault and pressure and as such, extra-judicial confession should be rejected by this Court. In support of his contention Mr. Acharya relied upon the decisions in Balwinder Singh v. State of Punjab reported in 1996 SCC(Cri) 59 and K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin reported in 1997 SCC(Cri) 444.
13. Mr. Acharya also contended that in order to prove the prosecution case based on circumstantial evidence the chain of circumstances must be complete so as to point to the conclusion that it was none but the appellant who was responsible behind the incident of murder. In this case, chain of circumstances was not completed to establish the prosecution case that appellant caused murder of deceased and accordingly, the conviction and sentence passed by the learned Trial Court should be set aside. In support of his contention Mr. Acharya cited the decisions in Balwinder Singh v. State of Punjab (supra), Kanhai Mishra @ Kanhaiya Misar v. State of Bihar reported in 2001 SCC(Cri) 537, Nirmal Pasi v. State of Bihar , Lallu Manjhi v. State of Jharkhand reported in 2003 SCC(Cri) 544 and Narendra Singh v. State of M.R. reported in 2004 SCC(Cri) 1893.
14. Mr. Ashimesh Goswami, the learned Additional Public Prosecutor submitted before us that the alleged extra-judicial confession is reliable and trustworthy. Assault, if any, given to the appellant was after his confession and the evidence does not establish that before confession he was assaulted. The assault on him by the villagers was a normal conduct of villagers as they became enraged when they learnt that the appellant murdered his own wife in collusion with another accused Jahanara Bibi. The conduct of the accused plays an important role as from evidence of the witnesses it transpired that when the witnesses detected the deadbody of deceased on the bank of river Khirai, the appellant was found trying to flee away and seeing this the villagers caught him and produced him at village Panchthubi.
15. Mr. Goswami further submitted that from the evidence of P.W. 3, P.W. 5 and P.W. 11 it transpired that the appellant had illicit relation with the accused Jahanara Bibi. The deceased was the wife of the appellant and the deceased was last found with the appellant in his house. As husband, the appellant was guardian of his wife and he was bound to take care of his wife. The alibi created by the appellant by coming to house of P.W. 5 and P.W. 1 at evening of 15.3.99 and morning of 16.3.99 disclosing that his wife was missing is false per se. If his wife was really missing, why the appellant did not lodge any missing diary at police station? It was peculiar conduct of the appellant when he was trying to flee away after the villagers detected the deadbody of deceased was hanging from a tree on the bank of river with her feet touching the ground. Accordingly, all the circumstances were complete and the theory of last seen of deceased with the appellant is also applicable in the present case. The circumstances and the extra-judicial confession clankingly proves that the appellant was guilty of murdering his wife. The other accused Jahanara Bibi was also guilty and against her clearly elements of Section 201 of IPC transpired but as no appeal was preferred against order of acquittal nothing can be done against her.
16. Mr. Goswami last of all submitted that examination of the appellant under Section 313 of the Code was not absolutely bad though elements transpired from each of the witnesses were not put to him through separate questions. All the circumstances transpired in evidence of witnesses were put to the appellant though names of each and every witness was not mentioned in the questions. The examination under Section 313 of the Code was thus not illegal and as all the circumstances were put to the appellant during his examination under Section 313 of the Code, the appellant was not prejudiced at all. In support of his contention Mr. Goswami cited the decisions in Madan Pal v. State of Haryana reported in 2003 C Cr. LR (SC) 778 and Rajan Rai v. State of Bihar reported in 2006 C Cr. LR (SC) 34.
17. We have carefully perused the evidence and materials on record and also considered the submissions made by the learned Advocates. We have already discussed the nature of evidence which were adduced before the Court during trial by the witnesses. It appears that the FIR was lodged on 16.3.99 at 8.55 p.m. before the Pingla Police Station by P.W. 1, brother of the deceased. Before that on same day at 9.25 a.m. morning P.W. 5 lodged one general diary at police station relating to unnatural death of Sahida Bibi, his daughter. Though in the General Diary No. 665 dated 16.3.99 of Pingla P.S. (Ext. 9) it was not stated that the appellant was the murderer but, the general diary clearly reveals that P.W. 5 had suspicion relating to unnatural death of his daughter Sahida Bibi.
18. Evidence of P.W. 1, P.W. 2, P.W. 3. P.W. 4, P.W. 5. P.W. 6, P.W. 7. P.W. 8, P.W. 9 and P.W. 11 clearly reveal that when they were searching Sahida Bibi they found deadbody of Sahida was hanging on the bank of river Khirai from a tree. Their evidence clearly establishes that the feet of deceased had touched the ground when they saw her deadbody; an unusual feature which destroyed possibility of suicide by the deceased. There they found blood near her feet on earth and broken pieces of ‘churi’. The evidence of P.W. 1, P.W. 3, P.W. 4, P.W. 5, P.W. 9 and P.W. 11 further reveal that the appellant made a false alibi before them by coining to house of P.W. 5 at evening of 15.3.99 and early morning of 16.3.99 when he disclosed that his wife Sahida was not traceable. The evidence of post-mortem surgeon (P.W. 10) reveals that death of Sahida Bibi “was due to cardio-respiratory failure due to ante-mortem, strangulation and homicidal in nature”. The postmortem examination report (Ext. 3) clearly reveals that it was not a case of suicide but, it was a clear case of strangulation and homicidal death. It proves that before death the deceased Sahida Bibi was strangulated and was murdered.
19. The evidence of the witnesses further proves that when they detected the deadbody of Sahida Bibi they found that the appellant was trying to escape and they caught him and brought him at village Panchthubi, and there, before the villagers after interrogation, he confessed that he and Jahanara murdered Sahida at house of Jahanara Bibi and hanged her deadbody on a tree on the bank of river Khirai. The evidence of the witnesses also reveals that the Investigating Officer (hereinafter called the I.O.) P.W. 15 seized blood-stained earth and broken pieces of ‘churi’ from the place where deadbody of Sahida was found by preparing a seizure list (Ext. 7/1). Evidence of P.W. 15 further reveals that he searched the house of accused Jahanara Bibi and found mark of blood at three places in front of her house. He seized the blood-stained and controlled earth from that place of house of Jahanara Bibi by preparing a seizure list (ext. 7). The evidence of the villagers and the evidence of I.O. introduced before the Court very important circumstantial evidence that in front of house of Jahanara Bibi stains of blood were found and stains of blood were also found where body of Sahida Bibi was recovered along with broken pieces of her ‘churi’.
20. The evidence and circumstances mentioned above thus completes chain of circumstances and gives clear indication as to who was the brain as well as person behind the murder of Sahida Bibi.
21. We are not at all convinced with the submission of Mr. Acharya that the alleged extra-judicial confession of appellant was not voluntary as it was obtained under threat, pressure and assault. We find that the evidence of the witnesses clearly reveal that the villagers interrogated him first and he made the extra-judicial confession and thereafter the villagers assaulted him. The villagers assaulted him after they became enraged when they learnt from the confession that it was appellant, who himself had murdered his wife along with another lady accused. From evidence of P.W. 3, P.W. 5 and P.W. 11 it transpired that there was illicit relation between the appellant and Jahanara Bibi and Sahida Bibi protested against the activities of appellant and that is why she was killed to remove the hurdle which was standing between the relation of appellant and Jahanara Bibi.
22. In our opinion, if the extra judicial confession is voluntary, assault and threat is no bar to accept extra-judicial confession. The point for consideration before the Court is whether the extra-judicial confession is acceptable. In this case, from the evidence of the witnesses we find that all the witnesses stated about voluntary extra-judicial confession made by the appellant after he was produced at village Panchthubi, and accordingly, the said extra-judicial confession is acceptable, reliable and convincing. The decisions cited by Mr. Acharya do not make out any new principle of law as it is the settled principle of law that extra-judicial confession if voluntary and not caused by inducement, and threat may be accepted and relied upon. We also admit the position of law that, the extra-judicial confession is a weak type of evidence and it requires appreciation with care and caution. In this connection we also like to cite a decision of Supreme Court in Gura Singh v. State of Rajasthan reported in 2001(2) SCC 205. In this decision also the Supreme Court laid down that extra-judicial confession, if voluntary and not obtained by coercion, inducement or promise of favour can form the sole basis of conviction. It was further held that retraction of such confession would not by itself weaken the prosecution case. In the reported decision, it was a case of murder (patricide), and there, the appellant made a confession immediately after the incident to his near relations without any undue influence, coercion or pressure and there was no suggestion that this confession was not voluntary. It was held by the Supreme Court that in the circumstances the conviction can be based on such confession.
23. A Division Bench of this Court in Krishna Ch. Santra v. State reported in 1986 Cr. LJ 2077 held that, “If the confession was made voluntarily, and if it was not just a proposition put forth by the villagers or the police then in spite of assault the confession so far as the information disclosed is concerned might be called voluntarily.” It was held further by the Division Bench that, “It is quite natural that after one confesses that he has committed murder he would be assaulted. That by itself would not vitiate the extra-judicial confession. Even if one is assaulted before the said confession, to our mind that would not always vitiate the confession. What the Court has to see is whether the confession made was voluntary or not.”
24. In the present case we clearly find that when the appellant made the alleged extra-judicial confession at village Panchthubi there was no assault on him before such confession. When the appellant confessed that he murdered his wife Sahida Bibi in the house of Jahanara Bibi with her company, the villagers became furious and thereafter they assaulted the appellant as a result of which he sustained injury on his leg. Considering the entire evidence and circumstances we are firm in our opinion that the said confession was voluntary and it was not obtained by inducement, threat, coercion or promise of any favour. We are to remember that the villagers were illiterate and that is why during cross-examination one or two witnesses at the suggestion of the defence lawyer stated that the appellant was assured that he would not be assaulted. In our opinion, such evidence during cross-examination at the instance of defence lawyer to illiterate village persons does not caste any doubt or suspicion on the voluntary character of the confession. The extra-judicial confession made by the appellant in this case was voluntary and accordingly it can be accepted and acted upon.
25. We are also not convinced with the submission of Mr. Acharya that except the alleged confession there was no material to connect the appellant in the incident and chain of circumstances was not complete to point to the guilt of the appellant in order to found him guilty and to convict him in this case.
26. There is no dispute that the entire prosecution case is based on circumstantial evidence and there was no eye-witness of the incident. Let us explain what are the circumstances that have transpired from evidence and materials on record. First circumstance for consideration is Sahida Bibi, the deceased, was the wife of the appellant. The appellant being the husband was her guardian and he had duty to look after his wife. From evidence it has been transpired that the deceased was in the house of the appellant before her death. The appellant had the duty to take care of his wife and to protect her life. The deceased was last alive while she was in the house of the appellant. The theory of last seen’ is applicable in this case as the deceased was last found alive in the house of the appellant before her death.
27. The second circumstance is the alibi created by the appellant by coming to house of P.W. 5 at evening of 15.3.99 and early morning of 16.3.99 and disclosing before P.W. 1, P.W. 4 and P.W. 5 that deceased was untraceable. Subsequently, from evidence of witnesses as well as from medical evidence i.e. post-mortem surgeon (P.W. 10) it was revealed that the death of Sahida Bibi was by strangulation and it was homicidal and ante-mortem in nature. It establishes that the alibi of appellant was false and unbelievable and evidence which came before the Court during trial proves that deceased was murdered.
28. The next circumstance is hanging of the deadbody of deceased from a tree by the side of river Khirai though her feet was touching the ground. If a person hangs himself/herself he or she cannot die by hanging if his/her feet touches the ground. It establishes that unless before hanging the said person was murdered death cannot be caused in such a manner and, it establishes that after murdering the deceased her deadbody was hanged from that tree by the person or persons who murdered her.
29. The next circumstance is the traces of blood on the ground near her feet and also finding of broken ‘churies’ at that place. Traces of blood was also found at three places in front of house of Jahanara Bibi. The I.O. seized the blood-stained earth and controlled earth from both the places as well as broken pieces of ‘churi’ and I.O. also seized wearing apparels of the deceased which were stained with blood, particularly the petticoat. The FSL reports confirm blood on petticoat though origin could not be detected.
30. The other circumstances is the post-mortem report which proves that death of Sahida Bibi was by strangulation and homicidal and ante-mortem and it was not a case of suicide. From evidence of witnesses namely, P.W. 3, P.W. 5 and P.W. 11 it transpired that the appellant had illicit relation with Jahanara Bibi and deceased protested against such relation and the evidence indicates that in order to get rid of her and to maintain their illicit-relation the deceased was murdered.
31. The extra-judicial confession of the appellant which we have already discussed earlier is reliable, trustworthy and voluntary and it supports the prosecution case of murder by the appellant. This is one of the circumstances in favour of prosecution and there is no ground to discard the alleged confession and to throw the prosecution case out of Court.
32. The evidence of Post-Mortem Surgeon (P.W. 10) reveals that when he examined the deadbody of Sahida Bibi on 17.3.99 at 2 p.m. already rigor mortis was present in the deadbody and decomposition had just started. His evidence also reveals that no salivary was found to be dribbling. Hyoid bone was found intact. Larynx was found collapsed and trachea was intact. According to the doctor the deceased was overpowered by repeated blows to the left side of forehead, face and abdomen and thereafter she was strangulated to death. P.W. 10 found ligature mark on upper part of neck and the doctor opined that the ligature mark was caused by using cord and not by finger. He stated that the death was caused 24/36 hours before the tune of examination. The doctor examined the deceased on 17.3.99 at noon and it clearly establishes that death of the deceased was caused in the night intervening between 15.3.99 and 16.3.99. It clearly proves that deceased was murdered and it was not a case of suicide and this fact strengthens the prosecution case that Sahida Bibi was murdered. Instantly husband’s responsibility to protect his wife comes into picture and when there is no evidence of attack by any miscreant on Sahida Bibi, the circumstances points to the role of husband in her murder.
33. It was not the case of the appellant nor there was any suggestion from defence that the deceased Sahida had illicit relation with anybody for which she was murdered. There was no defence case that on the night intervening between 15.3.99 and 16.3.99, the deceased was kidnapped by some miscreants and thereafter she was murdered. On the other hand, it transpires from evidence that the appellant did not inform the police station that his wife was missing. The appellant being the husband of deceased had the duty to inform the police station if his wife was really missing which alibi he made before P.W. 1, P.W. 5 and others coming to village of his father-in-law. Had it been really a case of missing of his wife, the appellant would have definitely informed the local police station regarding missing of his wife and a missing diary would have been recorded. The appellant in order to confuse the entire matter gave information to P.W. 1 and P.W. 5 that his wife Sahida was missing and it was found that such alibi was absolutely baseless and false.
34. Mr. Acharya made another submission to the effect that the place where deadbody of Sahida was found was about 1, kilometre from Jahanara’s house and it was not possible for the appellant and the lady accused to carry away the deadbody to such a long distance on the bank of river Khirai and thereafter to hang her deadbody with a tree. We are not convinced with this submission as after carefully perusing the evidence of the witnesses we do not find any evidence to the effect that the place where deadbody of Sahida was found was 1 kilometre from house of Jahanara. From evidence we find that the place where the deadbody of Sahida Bibi was found was 5/6 bighas away from house of P.W. 1 and this distance does not prove that the place from where deadbody of Sahida was found was 1 kilometre from house of Jahanara Bibi. P.W. 1 was a man of village Panchthubi and the accused was a resident of village Naya. The deadbody was found in village Kalapunja. From evidence it transpired that house of appellant is about 1 kilometre from house of P.W. 1 and it does not prove that the place where deadbody of Sahida was found was 1 kilometre from house of Jahanara.
35. We are unable to agree with the views of Mr. Acharya that examination of the appellant under Section 313 of the Code was not proper and all the incriminating materials that transpired in evidence were not put to the appellant and as such the Court cannot take into consideration all such materials. The decisions cited by him do not lay down any new principle of law and the Supreme Court in several decisions laid down the proposition of law as has been disclosed in the decisions cited by Mr. Acharya. After carefully going through the examination of the appellant under Section 313 of the Code we find that the Trial Court did not put before the appellant parawise the elements transpired from each of the witnesses. But, the total evidence and incriminating materials that transpired in evidence of the witnesses were put to the appellant. First three questions were formal and in the next three questions the learned Trial Court put before the appellant the incriminating materials that transpired against him in evidence. It was put to the appellant that he had illicit relation with Jahanara Bihi and as Sahida protested he used to assault her. It was also put to the appellant that on 15.3.99 evening and on 16.3.99 at morning he came to house of his father-in-law and informed them that Sahida was missing. It was also placed before the appellant during 313 examination that after search deadbody of Sahida was found hanging from a small tree on the bank of river Khirai and her feet were touching the ground and there were broken pieces of ‘churi’ and blood-stain on the ground. It was also put to the appellant that when he was interrogated he confessed that on 15.3.99 night he and Jahanara killed Sahida and hanged her deadbody from the tree.
36. We find that the element relating to recovery of blood-stain from the house of Jahanara was not put to him, though that element was put to the accused Jahanara Bibi. In our opinion, this element also should have been put to the appellant. Other elements i.e. assault on the appellant after confession and that before such confession he was trying to flee away and was caught by the villagers were not put to him. Considering the entire examination of the appellant under Section 313 of the Code we find that examination under Section 313 of the Code was not totally bad or illegal and all the important elements and circumstances were put to the appellant in the form of question in his examination under Section 313 of the Code and the appellant also gave reply. The appellant was not prejudiced at all due to non-mentioning of all the materials to him during his examination under Section 313 of the Code.
37. Considering the entire evidence and circumstances we find that all the circumstances clearly lead to the irresistible conclusion that it was none but the appellant who was behind the murder of his wife Sahida Bibi. All the evidence and circumstances clearly pinpoints to the conclusion that it was the appellant who murdered his wife. The acquittal of Jahanara Bibi cannot be a ground for acquittal of this appellant. Whether there were materials against Jahanara Bibi sufficient enough to establish elements of some offence or one offence are beyond the scope of our scrutiny as there was no appeal against order of acquittal of Jahanara Bibi. The Supreme Court in Rajan Rai v. State of Bihar (supra) has held that ground of acquittal of other accused cannot be a ground of acquittal of the appellant and if there are materials against the appellant he can be convicted.
38. In State of U.P. v. Rasid reported in JT 2003(5) SC 50 it was held by the Supreme Court that benefit of doubt given to some accused persons cannot be given to others when there are sufficient materials to establish guilt of others. The above principle of law clearly establishes that acquittal of Jahanara Bibi cannot be a ground of acquittal of the appellant or giving him benefit of doubt.
39. We find clinching materials and sufficient circumstantial evidence against the appellant which clearly proves that it was he who murdered his wife Sahida Bibi the deceased. In our opinion, the prosecution was able to prove its case beyond all reasonable doubts against the appellant and was able to bring home the charge under Section 302 of the IPC levelled against the appellant. We find that the learned Trial Court made no mistake by coming to the finding that the appellant was guilty of murdering his wife and sentencing him to suffer imprisonment for life. We affirm the judgment and order of conviction and sentence passed by the learned Trial Court.
40. In view of the discussion made above, the appeal fails and is dismissed. The appellant who was enlarged on bail is directed to surrender before the Trial Court within 30 days from the date of this order to serve out the sentence failing which the Trial Court will take steps in accordance with law by issuing warrant of arrest for securing his attendance before the Trial Court to serve out the sentence.
41. Criminal Section is directed to send down the Lower Court Record along with copy of judgment to the learned Additional Sessions Judge, Midnapore for information and necessary action.
P.S. Datta, J.
42. I agree.