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Calcutta High Court (Appellete Side)
Tarak Nath Jana vs The State Of West Bengal on 21 March, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appeal
Appellate Side
Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi
CRA 614 of 2013
With
CRA 186 of 2014
Tarak Nath Jana
Versus
The State of West Bengal
For the appellant : Mr. Jayanta Narayan Chatterjee,
(Amicus Curiae)
: Mr. Avishik Sinha, (Amicus
Curiae).
: Mr. Saryati Datta, Adv.
For the State in
CRA 614 of 2013 : Mr. Rana Mukherjee ld. APP
: Ms. Sujata Das, Adv.
For the State in
CRA 186 of 2014 : Mr. Neguive Ahmed, APP
: Ms. Z.N. Khan,
: Ms. Trina Mitra, Adv.
Heard on : February 28, 2024
Judgement on : March 21, 2024
2
Md. Shabbar Rashidi, J.:
1. Two appeals were filed by the same convict
against the same judgment and order of sentence by
learned trial court. By our order dated February 28,
2024, the appeal CRA 186 of 2014 being second in
point of time was directed to be treated as an appeal by
the appellant in CRA 614 of 2013. We propose to
dispose of both the appeals as one.
2. The appeal is directed against the judgment of
conviction dated March 22, 2013 and order of sentence
dated March 25, 2013 passed by learned 4th Additional
Sessions Judge, Fast Track Court, Paschim Medinipur
in Sessions Trial No. XXXIV/May-2012.
3. The case of the prosecution in a nutshell is that
the de facto complainant lodged a written complaint
with the Kharagpur Police Station on January 17,
2012. It was stated by the de facto complainant that he
gave his daughter in marriage with the
accused/convict about 2 ½ years ago. At the time of
such marriage, the de facto complainant gave a cash of
3
₹. 2 lakh, 10 bhoris of gold ornaments and furniture. It
was further stated that after such marriage, the
daughter of de facto complainant came to her father’s
house only once when she was carrying for 9 months.
She was not allowed to come to her father’s house by
her husband and mother-in-law.
4. The de facto complainant further stated in the
written complaint that once he visited the in-law’s
house of his daughter on the occasion of ‘Annaprasan’
but his son-in-law i.e. the convict avoided to talk to
him. He also demanded a sum of ₹. 60,000/- for
business through the victim. The de facto complainant,
accordingly, paid the said sum to the appellant.
However, peace did not prevail. On January 10, 2012,
the de facto complainant went to the matrimonial
house of his victim daughter to bring her to his house
but the appellant refused to send her. Again, on
January 16, 2012, elder brother and sister-in-law of
the de facto complainant went to bring the victim but
she was not allowed to come to her father’s house.
4
5. The de facto complainant also stated in his
written complaint that on January 17, 2012 at around
11.00 am, the appellant son-in-law informed him over
phone that he had cut the daughter of de facto
complainant. The de facto complainant immediately
went to the matrimonial house of his daughter and
found that the neck of his daughter was more than half
chopped and the tongue cut off and lying near the rice-
cooker. Her right cheek was also chopped. The de facto
complainant was also informed by the local people that
the appellant was taken by his cousin brother by his
motorbike to the police station where he surrendered.
He further stated that since then the appellant and his
cousin brothers were absconding. The dead body of the
victim was recovered by police on the statement of the
appellant. It was also stated that when he went to the
house of cousin brother of the appellant, he found the
mother-in-law of the victim sitting with the child of the
victim in her lap. Her wearing apparels were stained
with blood. She is said to have stated before police that
her son murdered the victim with a katari.
5
6. On the basis of such written complaint,
Kharagpore PS Case No. 25/12 dated January 17,
2012 under Sections 498A/302 of the Indian Penal
Code was started against the appellant. Police took up
investigation and submitted charge sheet against the
appellant. Accordingly, on the basis of materials in the
case diary, charges under Section 498A/302 of the
Indian Penal Code were framed against the appellant
on June 01, 2012.
7. In order to substantiate the charges, prosecution
examined 13 witnesses in all. In addition, prosecution
also relied upon certain documentary as well as
material evidences.
8. Upon conclusion of evidence of the prosecution,
the appellant was examined under Section 313 of the
Code of Criminal Procedure. He pleaded innocence in
such examination. He categorically made a statement
in his examination under Section 313 of the Code of
Criminal Procedure that he did not demand any dowry
in his marriage with the victim. His father-in-law
voluntarily gifted some gold ornaments. He claimed
6
that the allegations of demanding dowry, subjecting the
victim to torture and committing her murder were all
false. He proposed to adduce defense witnesses as well.
9. With a view to refute the charges leveled against
him, the appellant adduced two defense witnesses.
10. Learned advocate for the appellants submitted
that there are no eye witnesses to the incident. The
entire case of the prosecution is based on
circumstantial evidence. The prosecution has failed to
establish the complete chain of circumstances leading
to the conclusive and exclusive proof of the guilt of the
appellant. In support of such contention, learned
advocate for the prosecution relied upon (2022) 5
Supreme Court Cases 438 (Satye Singh and another
Vs. State of Uttarakhand).
11. It has also been submitted on behalf of the
appellant that the offending weapon was not recovered
from the scene of occurrence. Moreover, the report
submitted by the Forensic Science Laboratory (FSL) is
inconclusive in so far as the bloodstains were not
established to be that even of human origin. There is
7
also no serological report either to establish the blood
group matching with that of the victim.
12. Learned advocate for the appellant further
submitted that the prosecution miserably failed to
establish the extra judicial confession alleged to be
made by the appellant.
13. It is further submitted that the prosecution failed
to examine independent witnesses in support of the
case of the prosecution. Even the next door neighbors
of the in-laws house of the victim were not examined
who could have thrown some light on the incident. On
the other hand the defense has been able to sufficiently
establish the alibi of the appellant to the effect that the
appellant was not even present at the scene of
occurrence at the relevant date and time.
14. Relying on (2006) 12 Supreme Court Cases 306
(Vikramjit Singh alias Vicky Vs. State of Punjab)
learned advocate for the appellant also contended that
since the prosecution has not been able to prove the
allegations under Section 498A of the Indian Penal
Code and since, the defense has amply proved the alibi
8
set up by the appellant, the appellant is divested of any
obligations enshrined under Section 106 of the Indian
Evidence Act.
15. Learned advocate for the appellant has further
contended that the prosecution failed to establish a
case under Section 498A of the Indian Penal Code. If
that be so, according to the learned advocate for the
appellant, there was no motive for the alleged
occurrence.
16. Learned advocate for the appellant also relied
upon the decision rendered in 1965 SCC OnLine SC
109 (Aghnoo Nagesia Vs. State of Bihar) to contend
that the alleged confessional statement allegedly made
by the appellant before the police and in the custody of
police, on the basis of which he is said to have been
arrested and the offending weapon was recovered, is
not admissible in evidence in terms inter alia of the
provisions contained in Section 25, 26 and Section 27
of the Indian Evidence Act.
17. On the other hand, learned advocate for the State
argued that the prosecution has convincingly proved
9
the case with the help of sufficient evidence. The
prosecution proved that the victim was legally married
wife of the appellant and that she died at her
matrimonial house.
18. It was further contended that the evidence on
record suggested that the victim was subjected to
physical and mental torture by the appellant and
ultimately she was killed by him. It was also submitted
that though there was no eye witness to the
occurrence, nevertheless, the prosecution has been
able to establish entire chain of circumstances which
points to the guilt of the appellant and only the
appellant to the exclusion of any other.
19. Learned advocate for the State also submitted
that the death being an unnatural death, occurred at
her matrimonial house, the appellant was under
obligation to explain the circumstances under which
the death of victim occurred. The appellant having
failed to discharge such obligation, together with the
circumstances established on behalf of the
prosecution, guilt of the appellant stood proved.
10
20. Referring to the evidence led at the trial, learned
advocate for the State submitted that the prosecution
has sufficiently been able to bring home the charges
leveled against the appellant. The impugned judgment
of conviction and the consequential order of sentence
do not require any interference.
21. As noted above, in order to establish the charges,
the prosecution examined 13 witnesses, besides the
documentary and material evidences.
22. The de facto complainant himself deposed as
PW1. He stated that he had one son and two
daughters. The victim was his younger daughter. She
was married to the convict three years ago (from July
04, 2012). After such marriage, the victim went to her
matrimonial house. She had an 8 months old girl child
out of the aforesaid wedlock at the time of incident.
PW1 further stated that the victim was murdered by
her convict husband.
23. It was further stated by PW1 that at the time of
marriage of victim, he gave ₹. 2 lakh cash, 10 bhoris of
gold ornaments along with other articles. However, his
11
victim daughter had a disturbed matrimonial life. She
used to be subjected to torture by the convict. At the
‘Annaprasan’ ceremony of the grand child of PW1, his
daughter informed that her husband wanted a further
sum of ₹. 60,000/- which PW1 handed over to the
convict. Nevertheless, the victim was not allowed to go
to her father’s house. PW1 used to visit the
matrimonial house of the victim. He last visited 8 days
prior to the Pous Sankranti of 2012 to bring back his
daughter but the convict refused to send her back and
gave out that she could be taken back forever. On
return, PW1 informed his family members about the
incident. Consequently, two days after the Pous
Sankranti, elder brother of PW1 and his wife went to
the matrimonial house of the victim to bring her but
the convict refused to send her.
24. PW1 further stated that on January 17, 2012 at
around 11.00 am the convict informed him over phone
that he had murdered the victim. PW1 informed the
matter to his brothers and proceeded to the place of
occurrence. Reaching there, PW1 found the dead body
12
of the victim lying in a pool of blood in the kitchen with
deep cut injuries on her body. The throat of the victim
was cut open and there were injuries on her cheek. The
vegetables lying in the kitchen were stained with blood.
He also found a bloodstained ‘Katari’ lying in the
kitchen with which his daughter was murdered by the
convict. PW1 also stated that local people gathered
there told him that his son-in-law/convict had gone to
police station to surrender. He also found that the
mother of the convict was sitting in the house of Nitai
Jana with the child of the victim. She informed PW1
that her son had committed the murder. Thereafter,
PW1 went to police station and lodged a written
complaint. The written complaint was written as per
his instruction which was read over and explained to
him and being satisfied he signed it. On receipt of
written complaint, inquest was conducted on the dead
body and thereafter, it sent for post mortem
examination. PW1 identified the convict in court.
25. PW1 was cross examined at great length on behalf
of the defense. He appears to have withstood the test of
13
cross examination and nothing favorable could be
extracted in such cross examination.
26. The scribe was examined as PW2. He has stated
that he wrote down a written complaint at Kharagpur
(Local) Police Station as per instructions of one person
who was present there. After writing, he read over and
explained its contents to the complainant whereupon
the complainant signed on it. PW2 also signed the
written complaint as scribe. PW2 proved the written
complaint (Exhibit 2) and his signature thereon
(Exhibit 1/1).
27. An uncle of the convict deposed as PW3. He
stated that he knew the victim. She was married to the
convict 2 ½ years prior to her death. PW3 further
testified that ₹ 2 lakh cash and 90 grams of gold
ornaments were given in the marriage of the victim.
Subsequently, a sum of ₹. 60,000/- was further paid as
dowry. PW3 further stated that the victim had a female
child out of her wedlock with the convict. However,
there were persistent disputes between the husband
and wife. The victim was also not allowed to go to her
14
parent’s house. He further stated that the victim was
murdered by the convict in the kitchen with the help of
a ‘Katari’. PW3 went to the place of occurrence and
found the victim lying in a pool of blood and Katari in
her right hand. He proved his signature on the inquest
report.
28. One paternal aunt of the convict deposed as PW
4. In her deposition, PW 4 stated that the victim was
married to the convict and she was murdered at the
house of the convict. She however, could not say about
the details of the incident. PW 4 was declared hostile
by the prosecution and in her cross-examination on
behalf of the prosecution, she, denied having made any
statement before police.
29. The uncle of the victim deposed as PW 5. He
stated in his examination that the victim was married
to the convict about 2 ½ years ago. He was present in
the said marriage. The sum of ₹ 2 lakh, 10 bhoris of
gold ornaments were given as dowry. He further stated
that after marriage the victim went to her matrimonial
house and resided there. She had of the child out of
15
the aforesaid wedlock. PW 5 has further stated that at
the Annaprasan ceremony of the child, the convict
demanded further sum of ₹ 60,000 from the father of
the victim. The said amount was paid to the convict by
the brother of PW 5.
30. PW 5 has also stated that there were matrimonial
disputes in between the victim and her husband. The
victim was not allowed to visit her father’s house on
January 10, 2012 when the father of the victim went to
bring her back and also on January 16, 2012 when
another brother of PW 5 Sudhangsu Sekhar Maity and
his wife went to bring the victim back. However, she
was not allowed to come to her father’s house. On
January 17, 2012, the convict informed the de facto
complainant about the incident. Soon thereafter one
relative of the convict informed over telephone to PW 5
that the victim was murdered by her husband. Being
so informed, PW 5 and others went to the place of
occurrence and found the dead body of the victim lying
in a pool of blood. Her throat was slit, tongue was cut
and there were several injuries on the person of the
16
victim girl. However, the convict could not be found as
he fled from the scene.
31. Another uncle of the victim deposed as PW 6. He
has substantially corroborated and reiterated the
statement by PW5. He has also testified the marriage of
the victim girl with the convict and delivery of the girl
child out of the aforesaid wedlock. He further testified
the quantum of dowry given in the said marriage and
after the marriage. The demand of further dowry and
refusing the victim to return to her father’s house by
the convict/ appellant and on the very next day the
receipt of information with regard to the murder of the
victim were all testified by PW 6.
32. The cousin brother of the father of the victim was
examined as PW 7. This witness is a resident of village
where the appellants with the victim used to reside. He
has also corroborated the statement made by PW 5 and
6. He has narrated the incident of the marriage of the
victim with the convict husband, the part of the girl
child out of the aforesaid wedlock, demand of dowry
and refusal of the convict to send the victim back to
17
her father’s house to celebrate Sankranti. This witness
was also cross-examined on behalf of the defense.
However, nothing favourable to the defense could be
elicited on such cross examination.
33. The brother of the de facto complainant, who
visited the matrimonial house of the victim on the day
prior to her death deposed as PW 8. He stated in his
the possession that the victim was married to the
convict/appellant about 2 ½ /3 years and to lieu of a
cash of ₹ 2lacs, 10 bhoris of gold ornaments as dowry.
He further stated that after such marriage the victim
went to her matrimonial house and decided in
matrimonial with the appellant/convict. She gave birth
to a girl child out of the aforesaid wedlock. PW8 also
stated that he used to visit the matrimonial house of
the victim. He last visited on January 16, 2012
accompanied by his wife. He also stated that prior to
that the father of the victim had visited the
matrimonial house of the victim on January 10, 2012
to invite on Pous Parban. The appellant/convict
refused to send the victim back to her father’s house.
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34. PW 8 also stated that the matrimonial life of the
victim with the appellant/convict was not smooth and
there used to be frequent disputes between them. He
further stated that on January 17, 2012 at about
11.00/11.30 a.m. the convict informed the father of the
victim over telephone that the victim has passed away.
He also stated that after some time a phone call was
received from one of the relatives of the appellant
namely Manju Maity informing that the victim was
murdered by the convict and thereafter absconded.
35. Arriving at the matrimonial house of the victim,
PW 8, father of the victim and others found that the
dead body of the victim was lying in the kitchen. Her
throat was slit and there were cut injuries on her
cheek. The entire kitchen was filled with blood stains.
A blood stained Katari was also found near the hand of
the victim. The convict however could not be found as
he had fled away. PW 8 also stated that the mother of
the appellant was found sitting in a guest house and
upon an enquiry she gave out that her son had
committed the murder of the victim.
19
36. Thereafter, PW 8 and others went to the police
station and reported the matter. Police conducted
inquest over the dead body of the victim. He proved his
signature on the inquest reports. Later on, the dead
body was sent for post-mortem examination. There was
another inquest conducted on the dead body of the
victim girl in the morgue. PW 8 has also stated that on
the following day at around 12.00 noon, he
accompanied police and the appellant to the house of
the appellant. From the house of the appellant the
police recovered and seized blood stained Genji and
blood stained Gamcha. Police also seized the wearing
apparel of the victim under a seizure list. PW 8 has
proved the two seizure lists and his signature on that.
PW 8 was cross examined at length by the defense.
37. A local resident was examined as PW9. He stated
that he knew the victim and the appellant. They were
married some 2 ½ years ago. A sum of ₹ 2 lakh cash,
ten bhoris of gold ornaments and other articles were
given in the said marriage. After marriage the victim
went to her matrimonial house. She gave birth to girl
20
child out of the aforesaid wedlock. PW9 further stated
that on January 17, 2012, the victim was brutally
murdered by her husband i.e. the appellant at her
matrimonial house.
38. PW9 further stated that upon such information,
he along with other relatives went to the matrimonial
house of the victim and found her dead body lying in a
pool of blood in the kitchen. Her throat being slit and
there were cut injuries on her cheek. He also found
bloodstained chopped vegetables. Bloodstained ‘Katari’
and ‘Nora’ were also seen which were later seized by
the police. PW9 proved his signatures on such seizure
list (Exhibit 10) and inquest report (Exhibit 11). He
further submitted that police also seized bloodstained
‘ganjee’ of the appellant, wearing apparel of the victim.
He proved his signatures on such seizure list as well as
on the label attached to seized article. (Exhibit 12, 13
and 14 respectively).
39. The Executive Magistrate who conducted inquest
over the dead body of the victim deposed as PW10. He
has described the condition of the dead body and
21
injuries found on it. He proved the inquest report
prepared by him (Exhibit 15).
40. The Recording Officer deposed as PW11. He
stated that on January 17, 2012, he received a written
complaint from one Krishna Prasad Maity (PW1) and
started a specific case being Kharagpur (Local) Police
Station Case No. 25 dated January 17, 2012 under
Section 498A/302 of the Indian Penal Code. PW11
proved his endorsement of receipt on the written
complaint (Exhibit 16) and the formal First Information
Report filled up in his pen and signature (Exhibit 17).
41. The autopsy surgeon deposed as PW12. He
stated that on January 18, 2012, he conducted post
mortem on the dead body of the victim. He has
described in details, the nature and extent of injuries
found on the person of the victim. He proved the post
mortem report prepared in his pen and signature
(Exhibit 18). PW12 also opined that the injuries found
on the person of the victim could be inflicted by an iron
made ‘Katari’ and such injuries were sufficient to cause
death of the victim.
22
42. PW12 also proved a letter dated April 13, 2012
containing certain queries from the investigating officer
(Exhibit 19) and letter written by PW12 in response to
such query (Exhibit 20) through which he specifically
opined that the injuries found on the person of the
victim were ante mortem and homicidal in nature and
were sufficient to cause death.
43. The investigating officer of this case has deposed
as PW13. He stated that on January 17, 2012 he was
endorsed with the investigation of this case. During
investigation, he visited the place of occurrence,
prepared rough sketch map with index of the place of
occurrence, examined available witnesses and recorded
their statements under section 161 of the Code of
Criminal Procedure. He also took the photographs of
the dead body and conducted inquest over the dead
body. He also proved the seizure lists prepared by him.
PW13 described in details as to the steps taken in
course of investigation. On completion of investigation,
PW13 submitted charge sheet against the appellant on
April 16, 2012. PW13 also proved the statement of the
23
appellant recorded under Section 161 of the Code of
Criminal Procedure, on the basis of which, the wearing
apparel of the appellant was recovered. PW13 was
cross examined by the defense at great length.
44. On completion of the evidence on behalf of the
prosecution, the appellant was examined under Section
313 of the Code of Criminal Procedure. In such
examination, the appellant pleaded innocence having
not been involved in the murder of his wife. The
appellant made out a specific plea, in his examination
under Section 313 of the Code of Criminal Procedure
that he was not present in the house at the relevant
date and time. He claimed to have never demanded
dowry or inflicted torture upon the victim. The
appellant proposed to adduce defense witnesses.
45. Defense examined two defense witnesses. The
mother of the appellant was examined as DW1. She
stated that she used to reside with her son i.e. the
appellant and his victim wife. She also stated that at
the time of incidence she was in the house of her
‘Bhasur’ Kishori Mohan Jana. She heard a sound and
24
rushed to her house. Going there, she found the victim
lying in a pool of blood. She also saw a person running
out from her house towards the pitch road. She could
not identify the said person but his appearance bore a
resemblance with that of the driver of power tiller at
the father’s house of the victim named as Lakhikanta.
DW1 also stated that at the time of incident, the
appellant was not present in the house. He was out
working in the fields at a distance of 15/20 minutes
walk from her house. Her son, Goutam had also gone
to give tuition.
46. DW1 also stated that upon seeing the dead body
she raised alarm whereupon, her neighbours and
Bhasur came there and thereafter, the matter was
informed to the police. The Bhasur of DW1, Kishori
Mohan Jana went to call the appellant from the fields.
On his arrival, the appellant went to lodge information
to the police station. He however, did not return as he
was detained by the police. She also stated that the
victim lead a peaceful conjugal life. She was
interrogated by police.
25
47. In her cross examination, however, DW1 could
not give the details of the land where the appellant was
working or that of the house where her second son
went for giving tuition.
48. The ‘Bhasur’ of DW1 deposed as DW2. He stated
that at the time of incident, DW1 was in his house.
Upon hearing a sound DW1 went to her house. Going
there she shouted that the victim was cut down.
Hearing the same, DW2 rushed to the house of DW1
and saw the victim lying in a pool of blood. He further
stated that he was informed by DW1 that she saw
someone running from her house towards the pitch
road. DW2 also stated that at the time of incident,
appellant was working in the fields. DW2 went to call
the appellant. He also instructed the appellant to
inform the parents of the victim and report the matter
to the police. Subsequently, police visited the house of
appellant and interrogated DW2. The appellant went to
inform the police and did not return as he was
detained. DW2 also stated that the victim had a good
relation with the appellant.
26
49. In his cross examination, DW2 could not give the
details of the sound they heard from the house of
appellant at the relevant time. He followed DW1 to her
house in 5/7 minutes. DW2 also stated in his cross
examination that he was lame by birth.
50. Upon conclusion of the trial, by the impugned
judgment, the appellant was convicted for the offence
punishable under Section 302 of the Indian Penal
Code. He was however, found not guilty of the offence
punishable under Section 498A of the Indian Penal
Code. By the impugned order of sentence, the appellant
was sentenced to suffer Rigorous Imprisonment for life.
He was also sentenced to pay a fine of ₹. 10,000/- and
in default of payment of fine he was sentenced to suffer
Rigorous Imprisonment for a further period of one year.
51. The case of the prosecution is that the victim was
married to the appellant some two and half years prior
to her death. She used to live in matrimony with her
husband and mother-in-law. She had a girl child out of
the aforesaid wedlock. According to the case made out
by the prosecution, the victim was killed.
27
52. It is the case that father of the victim was
informed over phone by the appellant that the victim
was no more. Father of the victim, his relatives and
others went to the place of occurrence where the victim
was found lying in the pull of blood in the kitchen of
her matrimonial house. The matter was reported to the
police authorities. The police conducted inquest report
over the dead body of the victim. Later on, the dead
body was sent for post-mortem examination. A second
inquest by the learned magistrate was conducted at the
hospital morgue.
53. Ultimately, post-mortem examination was
conducted by the autopsy surgeon PW12. The evidence
of PW1 discloses the minute details of the injuries
found on the dead body of the victim. PW12 proved the
post-mortem examination report prepared by him
which was admitted in evidence as Exhibit 18. In his
deposition, in consultation with the examination report
prepared, PW12 opined that the injuries found on the
person of the victim were possible to be inflicted by an
iron made katari. He further opined that the injuries so
28
found were sufficient to cause death of a person and
the aforesaid injuries were ante-mortem and homicidal
in nature.
54. Therefore, on the basis of the deposition of PW2
together with the testimony of Exhibit 18, it is quite
evident that the victim died an unnatural death due to
the ante-mortem injuries inflicted upon her person.
The injuries so found were in the opinion of the
medical officer sufficient to cause death of a person.
55. As regards, the cause of death and the person
responsible for the injuries resulting in death of the
victim, according to the case made out by the
prosecution, victim was married to the appellant.
Undoubtedly, the victim had girl child aged below one
year out of the aforesaid wedlock. It also transpires
from the evidence on record that the victim used to
reside at her matrimonial house with the appellant and
other in-laws. The victim was found dead in the
kitchen of her matrimonial house with fatal injuries
caused by sharp-cutting weapon.
29
56. According to the prosecution case, the victim was
murdered by her husband with the help of a katari.
The evidence on record goes to show that the victim
had strained relation with the appellant. It is
consistent stand of the prosecution witnesses that the
marriage of the victim with the appellant was
solemnized on payment of Rs. 2 lac cash, ten bhories
gold ornaments and other dowry articles. It also
transpires from the evidence of the prosecution that
the father of the victim once paid Rs. 60,000/- to the
appellant at the time of Anna Prasan Ceremony of the
child of the victim. The prosecution witnesses have
consistently narrated that the victim was not allowed
by the appellant to return to her father’s house since
after her marriage. According to such evidence, she
visited her father’s house only once after the marriage
and that is at the time, she was carrying for 9 months.
The prosecution witnesses have also corroborated each
other that the appellant refused the request of PW1
and PW5 to let the victim go to her father’s house on
several occasions. It has also come out from the mouth
30
of the prosecution witnesses consistently that the
appellant gave out before PW1 and PW5 that he will not
allow the victim to go back to her father’s house. If they
went to take her back, they could take her back
forever.
57. Although cash amount, gold ornaments and other
articles were given in the marriage of the victim as
dowry, evidence on record does not disclose an incident
that the victim used to be subjected to torture on
demand of dowry. There appears isolated incident of
demand of Rs. 60,000/- by the appellant which was
actually paid by PW1. Nevertheless, the evidence on
record was not very explicit as to the infliction of
torture by the appellant upon demand of the dowry. It
is for this reason, possibly the Learned Trial Court did
not find the appellant guilty of the offence punishable
under section 498A of the Indian Penal Code.
58. However, the evidence adduced on behalf of the
prosecution goes to establish that the victim was not
allowed to go to her father’s house on occasions which
describes the kind of relationship between the victim
31
and the appellant, which can be termed anything but a
normal relationship.
59. According to the case of the prosecution, PW1 got
information from the appellant over phone that his
daughter was no more. Being so informed, father of the
victim went to her matrimonial house and found her
lying in pull of blood with fatal cut injuries on different
parts of her body. The fact that the death of the victim
was reported on January 17, 2012 at about 11.00 am
is consistently coming out from almost all of the
material witnesses. The father of the victim PW1, PW4
and others immediately went to the matrimonial house
of the victim and found her lying in pool of blood. It is
also a consistence of the statement of the prosecution
and witnesses that upon reaching the matrimonial
house of the victim, her mother-in-law was found
sitting in a neighboring house belonging to the brother
of her husband. The appellant was not found in the
vicinity. PW1, PW4, PW5 and others have stated that
the mother of the appellant, sitting at the house of her
Deor (brother-in-law), reported to them that the victim
32
was murdered by her husband and he had gone to
police station to surrender himself. Such a story of
course, was denied by the defense.
60. The defence in his cross-examination took plea of
alibi. It was a specific case of the appellant that at the
relevant time of incident, he was not present in the
house; rather he was working in the fields. In her
examination, the mother of the appellant (DW1) stated
that the appellant was working in the fields which were
situated at a distance of 15/20 minutes’ walk from her
house. She has also stated that just prior to the
incident; she was sitting inside the house of her Deor
(brother-in-law).
61. According to the case set forth by the
prosecution, the death of the victim was reported to
her father. DW1 also stated that she, after discovering
the dead body, asked the appellant to inform the
victim’s father. DW1 i.e. the mother of the appellant
claimed to be in the house of her brother-in-law. She
rushed to her house upon allegedly hearing some
sound. Going there, she screamed whereupon, her
33
brother-in-law came rushing. Thereafter, DW2 was
sent to inform the appellant. On the contrary, when
PW1 and others came to the matrimonial house of the
victim being informed of her death, they did not find
any one in the house. It is the categorical statement of
such prosecution witnesses that DW1 was found
sitting in the house of DW2 with the baby of the
victim in her lap.
62. There is no evidence as to how the mother of the
appellant again came to the house of DW2 when she
came to her house hearing some sound and found the
victim lying in a pool of blood. She also spotted
someone fleeing away from her house. She also sent
her brother-in-law to inform the appellant.
63. According to the case of the prosecution, the
appellant went to surrender before the police whereas,
it is the case of defense that the appellant went to
lodge information at the police station but he was
detained in connection with the case. The incident
was allegedly informed to the father of the victim at
about 11.00 am. On such information, they arrived at
34
the matrimonial house of the victim and discovered
the dead body lying in a pool of blood. As per the
defense case, the occurrence was informed to the
father of the victim at the instructions of DW1. The
mother of the appellant (DW1) rushed to her house
upon hearing some sound. On her alarm, DW2 also
came to her house and was sent for the appellant.
However, DW1 was found in the house of DW2 when
the father of the victim and others came to her
matrimonial house, being informed of the incident.
64. The incident is said to have taken place on
January 17, 2012 at about 11.00 hrs. However, it was
reported to the police station on January 17, 2012 at
about 14.25 hrs. and that too, by the father of the
victim (PW1). There appears no explanation as to why
the matter was not informed to the police instantly
upon discovery of the incident by DW1, the appellant
or anyone from the matrimonial house of the victim.
65. So far as plea of alibi as set out by the appellant
is concerned, we are in total agreement with the
findings arrived at by learned trial court to the effect
35
that appellant has not been able to establish that he
was not present in the house at the relevant time of
incident or that he was actually working in the fields.
The appellant failed to give the details of the land
where he was allegedly working at that time. No
independent witness is forthcoming to establish that
he was working in the fields or anybody who saw the
appellant working in the fields at the relevant time.
The case set out by the evidence of defense witnesses;
appear to be merely an evasive explanation rather
than the conclusive proof of alibi.
66. Consequently, taking into consideration the
evidence adduced on behalf of the defense, we are of
considered opinion that the appellant has not been
able to sufficiently prove his absence from the scene of
occurrence at the relevant time, with the help of
convincing evidence. At the same time, undoubtedly,
the victim died an unnatural death at her matrimonial
house. There is evidence on record that the victim’s
matrimonial life was marred with turbulence at the
hands of the appellant, may be not on account of
36
demand of dowry. She was not allowed to visit her
father’s house and was allowed only once during her 2
½ to 3 years of matrimonial life. The aforesaid
circumstances coupled with the conduct of the
appellant, his mother and other relatives after the
incident, squarely puts the burden upon the appellant
to explain the circumstances under which the victim
died, in terms of the provisions of Section 106 of Indian
Evidence Act.
67. In the case of Vikramjit Singh (Supra), the
Hon’ble Supreme Court observed that,
“14. Section 106 of the Evidence Act does not
relieve the prosecution to prove its case
beyond all reasonable doubt. Only when the
prosecution case has been proved the burden
in regard to such facts which was within the
special knowledge of the accused may be
shifted to the accused for explaining the
same. Of course, there are certain exceptions
to the said rule e.g. where burden of proof
may be imposed upon the accused by reason
of a statute.”
37
69. In the aforesaid case the Hon’ble Supreme Court
laid down certain guiding principles on the following
terms, that’s to say:
“16. In Sharad Birdhichand Sarda v. State
of Maharashtra [(1984) 4 SCC 116 : 1984
SCC (Cri) 487 : AIR 1984 SC 1622] this
Court laid down the law in the following
terms: (SCC p. 185, para 153)“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused
can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court
indicated that the circumstances concerned
‘must or should’ and not ‘may be’
established. There is not only a grammatical
but a legal distinction between ‘may be
proved’ and ‘must be or should be proved’
as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033]
where the observations were made: [SCC
para 19, p. 807 : SCC (Cri) p. 1047]
38‘Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between “may be” and
“must be” is long and divides vague
conjectures from sure conclusions.’(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,(3) the circumstances should be of a
conclusive nature and tendency,(4) they should exclude every possible
hypothesis except the one to be proved, and(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show
that in all human probability the act must
have been done by the accused.”
(emphasis in original)
It was further observed: (SCC pp. 194-95,
paras 179-80)
39
“179. We can fully understand that though
the case superficially viewed bears an ugly
look so as to prima facie shock the
conscience of any court yet suspicion,
however great it may be, cannot take the
place of legal proof. A moral conviction
however strong or genuine cannot amount to
a legal conviction supportable in law.
180. It must be recalled that the well-
established rule of criminal justice is that
‘fouler the crime higher the proof’. In the
instant case, the life and liberty of a subject
was at stake. As the accused was given a
capital sentence, a very careful, cautious
and meticulous approach was necessary to
be made.”
70. In the instant case, however, the prosecution
has been able to prove that the victim was living at
her matrimonial house with the appellant and that
her matrimonial life was anything but peaceful.
Prosecution has also been able to establish that the
victim died an unnatural death at her matrimonial
house under suspicious circumstances. The appellant
has not been able to explain such suspicious
40
circumstances. All such circumstances
overwhelmingly points to the involvement of the
appellant and appellant alone. The circumstances
brought home by the prosecution on the basis of the
evidence adduced by it, negates the proposition that
the prosecution has not proved its case independently
and the same is based merely on the failure of the
appellant to explain the circumstances of death of his
wife.
71. As noted, the prosecution has established that
the unnatural death of the victim occurred under
suspicious circumstances at her matrimonial house.
The appellant being the husband of the victim failed
to explain the circumstances leading to the death. Not
only that the prosecution has been able to
comfortably establish the circumstances that lead to
the only proposition that the death was caused by
none other than the appellant.
72. In the case of Aghnoo Nagesia (Supra), the
Hon’ble Supreme Court held that,
41
“18. If the first information report is given by
the accused to a police officer and amounts
to a confessional statement, proof of the
confession is prohibited by Section 25. The
confession includes not only the admission
of the offence but all other admissions of
incriminating facts related to the offence
contained in the confessional statement. No
part of the confessional statement is
receivable in evidence except to the extent
that the ban of Section 25 is lifted by Section
27.”
“20. We think, therefore, that save and
except Parts 1, 15 and 18 identifying the
appellant as the maker of the first
information report and save and except the
portions coming within the purview of
Section 27, the entire first information report
must be excluded from evidence.”
73. Although, the bloodstained wearing apparel of
the appellant was recovered and seized as per his
leading statement, learned advocate for the appellant
has pointed out that the entire statement instead of
the relevant portion thereof, of the appellant recorded
under Section 161 of the Code of Criminal Procedure,
42
was admitted in evidence which is not permissible in
terms of the provisions of Section 27 of the Indian
Evidence Act.
74. Section 27 of the Indian Evidence Act lays down
that only the portion of a statement recorded under
Section 161 of the Code of Criminal Procedure leading
to recovery becomes admissible in evidence. The
remaining portion cannot be read in evidence
rendered inadmissible in terms of Section 25 of the
Indian Evidence Act, made while in police custody.
75. Moreover, in the present case, though, it has
come out that when PW1 and others came to the
matrimonial house of the victim, they were informed
that the appellant had gone to police station to
surrender. However, as is evident, the case was
initiated on the basis of a written complaint lodged by
PW1. No statement said to be confessional statement
of the appellant is forthcoming where he allegedly
confessed his guilt while in custody of police. Unlike
the present case, in the case of Aghnoo Nagesia
(Supra), the case was initiated on the basis of a
43
confessional statement made by the accused himself
which was considered to be a statement made while
in custody of police. Therefore, in the facts of the
present case, we are of the opinion that the principles
laid down in the case of Aghnoo Nagesia (Supra)
have no manner of application in the facts of the
present case.
76. Learned advocate for the appellant relied upon
the case of Satye Singh (Supra) in support of the
proposition that prosecution is under obligation to
prove the entire chain of circumstances which would
unerringly conclude that alleged act was committed
by the accused only and no one else. In as much as
Section 106 is not intended to relieve the prosecution
from discharging its duty to prove the guilt of the
accused.
77. Applying the principles laid down in the case of
Satye Singh (Supra), in the present case, the
prosecution has proved that the victim was married to
the appellant and she was residing in her matrimonial
house. Prosecution has also established that the life
44
of the victim in her matrimonial house was blemished
with turbulence. She was not even allowed to visit her
father’s house. Coupled with such circumstances, she
was found dead with fatal injuries in her matrimonial
house.
78. Although, a plea of alibi was set out by the
appellant but we are convinced that the appellant
failed to explain the circumstances under which the
victim received the fatal injuries inside her
matrimonial house or establish his absence from the
scene of occurrence at the time of incident. If that be
so, Section 106 of the Indian Evidence Act, 1872 is
squarely attracted in the facts and circumstances of
the present case.
79. Therefore, in the light of the discussions made
hereinabove, we find no justification to interfere with
the impugned judgment of conviction and order of
sentence. The same is hereby affirmed.
80. In the result, thus, the instant Criminal Appeal
being CRA 614 of 2013 stands dismissed, however,
45
without any order as to costs. Connected applications,
if any, shall also stand dismissed.
81. Period of detention already undergone by the
appellant during the inquiry, investigation and trial
shall be set off towards the substantive punishment in
terms of Section 428 of the Code of Criminal
Procedure.
82. Trial court records along with a copy of this
judgment; be sent down at once to the learned trial
court for necessary action.
83. Photostat certified copy of this order, if applied
for, be given to the parties on priority basis upon
compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
84. I agree.
[DEBANGSU BASAK, J.]
