Tripura High Court
Smt. Binata Das vs State Of Tripura on 11 December, 2018
Equivalent citations: AIRONLINE 2018 TRI 337
Bench: Sanjay Karol, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 44 of 2017
Smt. Binata Das
W/o Lt. Hari Mohan Das
Resident of Sripur,
Ward No.5, P.O. Dharmanagar,
District:-North Tripura.
----Appellant(s)
Versus
State of Tripura
(Notice to be served through the
Ld. Public Prosecutor, High Court, Tripura)
----Respondent(s)
For Appellant(s) : Mr. PK Biswas, Sr. Adv.
Mr. J Bhattacharjee, Adv.
Mr. S Ghosh, Adv.
Mr. P Majumdar, Adv.
For Respondent(s) :Mr. B Choudhury, PP.
Crl. A 32 of 2017
State of Tripura
Represented by Under Secretary,
Department of Home, Govt. of Tripura.
----Appellant(s)
Versus
Sri Ashish Das
S/o Lt. Hari Mohan Das of Sripur,
Ward No.5, P.S. Dharmanagar, Dharmanagar,
North Tripura.
----Respondent(s)
For Appellant(s) : Mr. B Choudhury, PP.
For Respondent(s) : Mr. PK Biswas, Sr. Adv.
Mr. J Bhattacharjee, Adv.
Mr. S Ghosh, Adv.
Mr. P Majumdar, Adv.
Date of hearing : 27.11.2018.
Date of pronouncement : 11.12.2018
Whether fit for reporting : YES
Page 2 of 29
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
Lodh,J.
On agreement between the parties, these two appeals being Crl. A. (J) 44/2017 (Smt. Binata Das Vs. State of Tripura) and Crl. A. 32/2017 (State of Tripura Vs. Ashish Das) have been taken up together since both appeals are related to the common judgment dated 05.07.2017 passed by the learned Sessions Judge, North Tripura, Dharmanagar in connection with Case No. ST/T-1/000003/2016 whereby and whereunder one of the accused, Sri Ashish Das was acquitted and the other accused Smt. Binata Das was convicted and sentenced for life.
2. The accused-appellant Smt. Binata Das has challenged the judgment and sentence dated 05.07.2017 and 06.07.2017, respectively, while the State has preferred appeal against acquittal of Sri Ashish Das which has been registered as Crl. A. 32/2017.
BRIEF FACTS
3. On 10.03.2015 one Sri Nakul Das, the father of the deceased Poonam Das lodged a complaint with the Officer-in- Charge of the Dharmanagar Police Station, North Tripura stating, inter alia, that on negotiations his daughter was given marriage with Sri Ashish Das on 17th day of Baishakha, 1421 Page 3 of 29 B.S. according to Hindu rites and customs. Since after marriage his daughter used to complaint to him and other family members that her husband, mother-in-law and the eldest sister of her husband raised a demand and created pressure upon his daughter Poonam for collecting Rs.2 Lakhs as dowry from her father‟s house. When the deceased Poonam used to express the financial incapability of her father they used to assault her jointly. On complaint by her daughter they used to console her and pacify her with the advice to stay in her husband‟s house. On 10.03.2015 A.D. at about 3 O‟Clock in the afternoon he came to know from someone that his daughter was lying dead, being burnt, on the floor of her in- laws house. He and other family members rushed to the spot, i.e. the dwelling house of the accused appellant Binata where he found the appellant and the eldest sister of the husband along with adjacent neighbours. On query, both the appellant and her daughter, i.e. the eldest sister of the husband did not give proper answer regarding the matter of death. In that meanwhile, the police arrived at the place of occurrence. Accordingly, the father of the deceased Poonam smelt a conspiracy hatched by the husband, mother in law and the eldest sister of the husband with a view to kill his daughter by setting her body on fire.
4. On the basis of this complaint, the officer-in-Charge of the Dharmanagar PS registered an FIR and started Page 4 of 29 investigation. During the course of investigation many witnesses have been examined under Section 161 CrPC and some documents were also seized. Being prima facie satisfied with the guilt of the accused persons, the IO of the case submitted charge sheet against Smt. Binata Das, mother-in- law and Sri Ashsis Das, husband.
5. After commitment, the Sessions Judge, North Tripura framed charges against both the accused persons, Sri Ashish Das and Smt. Binata Das under Sections 498A, 302, 304B read with Section 34 of the IPC and Section 302 read with Section 34 of the IPC. In course of trial, as many as 23 witnesses were examined including the Doctor, Forensic expert and police officials and 14 documents were brought on record which are marked as exhibits 2 to 14. After completion of recording of evidence, the accused persons were put for examination under Section 313 CrPC wherein the accused persons pleaded innocence but declined to adduce any evidence on their behalf.
6. On culmination of the trial, the learned Sessions Judge returned the finding of conviction and sentenced the appellant Smt. Binata Das under Section 302 IPC and further found that the charges against the husband Sri Asish Das were not proved beyond reasonable doubt resulting in his acquittal. The order of sentence is reproduced hereinbelow: Page 5 of 29
"[45] In the result, I find and hold that the prosecution has been able to prove a case under Section 302 of the Indian Penal Code against accused Binata Das beyond all reasonable shadow of doubt. Accordingly, I find Binata Das guilty of the offence punishable under Section 302 of the Indian Penal code. She is taken into custody. Her surety is also hereby discharged from the suretyship. I shall pass the sentence after hearing the convict on 06-07-2017.
I further find and hold that the prosecution has failed to prove the charges under sections 498(a) and 304(B) read with section 34 of the Indian Penal Code against accused Binata Das beyond all reasonable shadow of doubt. Hence, accused Binata Das is hereby acquitted of the charges under Sections 498(A) and 304(B) read with section 34 of the Indian Penal Code.
I also find and hold that the prosecution has failed to prove the charges under Sections 498(A), 304(B) and 302 read with section 34 of the Indian Penal Code against accused Ashish Das beyond all reasonable shadow of doubt. Hence, accused Ashish Das is hereby acquitted of this case."
7. Being aggrieved by and dis-satisfied with the judgment and order of conviction and sentence, as stated hereinabove, the appellant Binata Das has preferred the appeal being Crl. A.(J)44/2017 before this Court and the State of Tripura has preferred appeal being Crl. A.32/2017 against the order of acquittal of the accused Ashish Das.
8. Heard Mr. PK Biswas, learned senior counsel assisted by Mr. J Bhattacharjee, learned counsel for the appellant Sri Binata Das as well as Mr. Babul Choudhury, learned PP appearing for the State of Tripura. Page 6 of 29
9. Mr. Biswas, learned senior counsel submits that the conviction and sentence as returned by the learned Sessions Judge is mainly based on the statements of PW4, 5 & 6 which submission is also supported by Mr. B Choudhury, learned PP. Learned PP has further submitted that the State has preferred appeal against the acquittal of Sri Ashish Das, the husband of the deceased, based on the evidence of PW4, 5 & 6.
10. PW4, Asit Baran Choudhury is an Assistant Teacher by profession. He has deposed that on 10.03.2015 at about 4.20/4.30 p.m. while he was watching TV in his room he heard one sound from the house of Binata Das "Oh Maa go, Oh Maa go". The house of Binata Das is just adjacent to the western side of his house, and he went to the boundary to inquire what had happened. He noticed that one female tenant of that house was just taking entry into the hut of the appellant. Thereafter, he noticed that the female tenant was standing in front of the house of Binata Das without movement and then he entered into the house of Binata Das after crossing the partition of the hut and he noticed Binata Das was doing something and thereafter going inside he noticed that cotton of pillow were scattered inside that hut. There was a bed, one showcase and one deity place, a drum of kerosene, etc. He also got the smell of kerosene oil. Initially, he saw two feet of a person, when he asked Binata what was that, then Binata pulled the legs and a totally burnt body of a female came out and it was totally black Page 7 of 29 in colour and that body when touched with his body he felt that it was totally cold and there was no sign of any fire incident in that hut or any smell of fire or any smoke. The body also was found bend. On further query the appellant informed him that it was the dead body of the wife of Ashish Das. The said PW4 has further deposed that he heard Binata Das lamenting that "Salir Sali Moira amare ekhan jail khawaibo." Then the said witness raised alarm. Neighbouring people also arrived there. Amongst the persons who arrived he could recollect Chanchal Bhowmik and Raju Datta. Accordingly, the police was informed. In his deposition he has further stated that it appeared to him that death of the deceased took place long back. He has stated that he did not hear in respect of any family dispute between the deceased and her matrimonial relatives.
11. In his cross-examination, he has categorically stated that he had no quarrel with the family of Ashish and Ashish used to live at Agartala during that period for his work. He has further stated that he never heard any quarrel in between Ashish, his wife and his mother. In cross-examination this witness has clarified that the cries of "Oh Maa go, Oh Maa go"
which he heard was the voice of Binata Das.
12. PW5, Hena Rani Dutta, aged about 60 years, wife of Niranjan Dutta had deposed that on 10.03.2015 she arranged Bipadnashini Puja in her house and she invited some persons including Binata Das, the appellant herein. Binata Das came at Page 8 of 29 about 4/4.15 p.m. and then she inquired from Binata why her daughter in law Poonam did not accompany her. Binata replied that Poonam was having headache and asked her to give Prasad and immediately after receiving Prasad she left and within 10 minutes she went out by taking her Prasad to her hut. After 2/3 minutes the said PW5 heard the cries of Asit Choudhury PW4 who was saying that something happened in the house of Binata Das. Then she along with others rushed to the house of Binata. After going to the hut Binata she noticed that a dead body totally in burnt condition was found in bent condition. She came back to her house.
13. In her cross-examination, she has categorically stated that she did not hear any quarrel between the wife of Ashish and her mother. So far her knowledge goes, Binata Das used to love her daughter-in-law. She further noticed Binata Das used to cook and her daughter-in-law used to grind spices. She has admitted that Binata along with Prasad also took oil and vermilion for her daughter-in-law. When Binata came to her house the deceased was alone in her house. The said witness had seen Binata Das making telephone calls to others. She has stated that she did not state to the police that when she went to the house of Binata Das that she reported to her that in the deity room the deceased committed suicide by burning herself. She also deposed that she did not state to the police the following, "after Binata Das left my house within one Page 9 of 29 or two minutes I head cries of Binata from her house uttering "Amar Sarbonash Hoiyache, Amar Sarbonash Hoiyache" and hearing that she went to the house of Binata and asked her what had happened when Binata told her that her daughter in law Poonam had committed suicide in the deity room and asked her to see and on being entered into the deity room she saw Poonam lying in totally burnt condition near the singhashan". Her attention in respect of her statement under Section 161 CrPC was drawn when though she admitted the presence of such statement to the police and the learned trial judge has provisionally marked this portion, which is marked as Exhibit-A subject to approval by the IO. She has further clarified that she has forgotten the statement that she was deposing.
14. PW6, Jhuma Debnath, aged about 33 years as on 15.12.2016 is a house wife. She used to reside with her husband and a kid at the house of Binata Das, the appellant herein. She has deposed that on 10.03.2015 at about 9/9.15 a.m. she has seen Poonam to spread wet clothes in the sunlight. She was at her hut up to 2/2.30 p.m. Thereafter, she went to the house of one Chanchal Bhowmik. She has stated that during her stay at her hut from 9.15 a.m. to 2.30 p.m. she did not notice anything abnormal in the hut of Binata Das. When she was about to take entry in the hut after returning from the house of Chanchal Bhowmik she heard the cries of Page 10 of 29 Binata Das and immediately, Asit Choudhury had arrived there. She saw Binata Das crying with the uttering that she was finished. When she inquired, Binata stated to her that a fire incident took place and having so noticed the dead body of Poonam in the deity room and her body was totally burnt. She did not notice any fire. Thereafter, many persons arrived there. She has categorically deposed that during the period from 12.30 pm to 2.30 pm she did not notice anything unnatural from the hut of Binata when she was declared hostile. When attention to her statement under Section 161 CrPC was drawn, such statement was found which is provisionally accepted and marked as exhibit 5 subject to approval by the IO.
15. In her cross-examination, she has stated that she did not suppress any fact before the Court. She has further stated in course of her cross examination that four days earlier to the incident there was Holi and on that date Manika and her husband played Holi with Poonam. She has further stated that after Holi she saw Binata arranging bath of Poonam with her own hand and washed the colours of Holi from the body of Poonam. She also has stated that she noticed very cordial relations between the deceased Poonam and her in-laws including her husband.
16. Now let us see the deposition of the father of the deceased who deposed as PW1. In his evidence, Sri Nakul Das (PW1) has deposed that he did not receive any telephone call Page 11 of 29 from any member of the family of the appellant. He found his daughter lying on the floor in total burnt condition. Near the dead body he saw one drum containing half quantity of kerosene oil and one bucket containing small quantity of water. He has stated that no portion of the hut was found burnt. In the ceiling, above the body of his daughter he noticed one samiana which was not burnt. He has stated that when he arrived at the house of her deceased daughter he only found Binata Das and other members of the house were found absent. He has specifically stated that except Ashish Das and Binata Das and his daughter no other person used to reside in that house. He has deposed that he suspected that it was a case of murder as 20/25 days before the date of incident his daughter visited his house and stated to him that she was sent by her mother in law and husband for taking Rs.2 lakhs but the purpose for which the money was required was not disclosed to him. He has further stated that he did not make any payment but assured to make payment subsequently. He also noticed mark of beating in the leg of his daughter and he suspected that his daughter was assaulted. In the course of his deposition before the Court, he identified the burnt necklace, ear-rings which were present in the Court.
17. In his cross examination, he has stated that he did not know that Ashish Das was a pharmacist and he had no knowledge that his son-in-law, i.e. the husband of his daughter Page 12 of 29 used to stay at Agartala and did job in a private institution, namely, Lal Path Labs situated at Colonel Chowmuhani, Agartala. He has stated that during 10 months tenure of her marriage he visited the matrimonial house of his daughter only twice; firstly, he visited on the date of Bou Bhat and then after 1 ½ months of her marriage. He has stated that at the time of preparation of inquest report he did not lodge any complaint against the accused person. He was present at the matrimonial house of her daughter for about one hour.
18. In cross examination PW1 has admitted that he came to know from his daughter that there was a tenant in that house. He has further stated that what he actually submitted in the complaint, i.e. the ejahar was drafted by an advocate but he could not exactly recollect the facts when he was deposing before the Court. His statement that one day during the visit of his daughter he had seen the marks of beating on her legs was found absent in his statement under Section 161 CrPC which also he admitted during his deposition.
19. PW3, Parul Das, the mother of the deceased also deposed in the same voice as that of PW1. She has stated that when she went to the house of Binata she found only Manika Das and the appellant Binata. She did not find Ashish Das. She has further stated that Binata Das reported to her that her daughter committed suicide and also stated that during that time she went to the neighbour‟s house for taking Prasad of Page 13 of 29 Bipadnashini puja. She has stated that her deceased daughter used to complain against her in-laws and also demanded Rs.2 Lakhs. The said witness has further stated that she tried to sell her landed property and an agreement was also entered into and they admitted to fulfill the demand but failed.
20. In her cross-examination, she has stated that after her marriage she visited only three times to the house of the appellant. She has stated that Ashish Das used to live at Agartala for the purpose of work as Pharmacist at Lal Path laboratory. She has stated that there was a tenant in the house of the appellant who was a auto driver. She has stated that after going out from the house of the appellant, she went to the house of an advocate‟s clerk at Chandrapur and got the ejahar drafted. Then she went to the police station and handed over the same to the police. She has categorically stated that from the house of Ashish Das, i.e. her son-in-law, to reach Chandrapur she had to cross Dharmanagar P.S.
21. Her statement in examination-in-chief that her deceased daughter visited her house about 15/20 days earlier to the date of incident, was found absent and it was admitted by PW3 in her statement recorded under Section 161 CrPC.
22. PW7, Shiuli Das is a hear say witness who has stated that she over heard one discussion between the deceased and her mother when the deceased, Poonam was Page 14 of 29 complaining to her mother saying that it would be good for her if she was given marriage with a Rickshaw Puller or with a day labourer and that there was a demand of money.
23. PW8, Manoj Kumar Shaw is a Tuk Tuk driver who found Manika crying saying that the wife of her brother was seriously ill and also asked him to accompany her. Manika proceeded to that house taking her scooty. He saw the dead body of the deceased.
24. PW9, Narayan Debnath was declared hostile.
25. PW10, Rupendra Narayan Chowdhury has stated that he came to know from the father of the deceased that the in-laws of the deceased had demanded Rs.2 lakhs and also caused injury on the legs of the deceased. Many of his statements, which he deposed in his examination in chief, were found absent when his attention was drawn under Section 161 CrPC recorded by the Investigating Officer. We are not inclined to give any credit to the statement of PW10. More so, he is a hearsay witness, who has told that the deceased had committed suicide.
26. PW11, Subrata Debnath is the advocate‟s clerk who has written the ejahar.
27. PW12, Jyotirmoy Das is the elder brother of the father of Poonam who also rushed to the house of the appellant Page 15 of 29 where he found the body of Poonam lying on the floor of the deity room in the house of Binata. His statement in examination-in-chief, that Poonam once complained to her father that it would be better if her marriage was solemnized with a Rickshaw Puller, his attention to the statement recorded under Section 161 CrPC being drawn to him, was found absent.
28. PW14, Nandadulal Saha is the officer in charge of the P.S. who registered the FIR.
29. PW16, Dr. Sandipak Roy is the medical officer who conducted the post mortem examination.
30. PW17, Mithu Debnath is the tenant of Binata Das who was declared hostile.
31. PW18, Babul Chakraborty is a fireman of the Dharmanagar Fire Service Station and on receipt of call they rushed to the house of the appellant.
32. PW19, Dr. Anup Goswami is the medical officer who was one of the members who conducted the post mortem examination.
33. PW20, Dr. Subrata Biswas was also one of the members of the post mortem examination.
34. PW21, Smt. Swarna Debbarma is the women SI who prepared the inquest in presence of the executive magistrate.
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35. PW22, Shri Rajdeep Deb is also a police personnel who went to the place of occurrence after receipt of the information of the incident. Some seized articles were exhibited by him.
36. PW23, Shri Dilip Kr. Bhowmik is the Deputy Superintendent of Police, CIC who also investigated the case at some stage.
37. We have perused the judgment of the learned Sessions Judge. It is found that the learned trial judge has relied upon the evidence of PWs 4&5. According to him, the evidence of these two witnesses suggests that when Binata went out from her hut the deceased might have died. While analyzing the evidence of PW4, the learned trial judge had held that PW4 felt that the burnt body of the deceased was cool and did not find any smoke in the room and no smell of burning of human flesh was coming out. According to him, the story was quite absurd that within 10-15 minutes a living female could commit suicide by pouring kerosene on her person without making any movement and in such a manner that the body became black and bent.
38. He also held that the body of the deceased was shifted by the appellant from one place to another and she tried to conceal the body. The learned trial judge further held that little portion of exhibits like shamiana, pillow, drum of Page 17 of 29 kerosene oil are the indication of planting of those articles without disturbances of the other places of the place of occurrence, the deity room to shape the incident as a case of suicide. He held that the circumstances of this case clearly indicate that it is a case of homicidal death and medical evidence also did not negate the circumstantial evidence of this case.
39. The learned trial judge made a issue to decide whether there was any demand of dowry while passing the judgment after discussing the evidence of PW1, PW3, & PW12 (father, mother and elder brother of the PW1 respectively,) and PW7, Shiuli Das. The learned trial judge came to the conclusion that he did not find any specific evidence that before her death the victim was tortured on demand of dowry which was involved at the time of marriage. Having viewed thus, he held that considering the entire situation in the present case, Section 304B of IPC could not be attracted.
40. Learned trial judge while returning the finding of acquittal against Sri Ashish Das, the husband of the deceased did not believe the statement of PW13, Kanuj Rn. Sen who has deposed that on that date at about 2.30 hrs when he was returning home he had seen Ashish Das proceeding towards Halflongcherra market and Ashish crossed him though he had no talk with Ashish and according to him, from the house of Ashish Das to go to Halflongcherra market, Ashish had to cross Page 18 of 29 the house of the witnesses and he further told that on that day he saw Ashish Das proceeding towards Halflong by riding a bike. The learned trial judge has further found from the evidence of PW9, Narayan Debnath that he saw Ashish Das on 10.03.2015 at Lal Path labs and Ashish reported to him that on 10.03.2015, at noon, traffic police imposed fine upon him. So, according to the learned Sessions Judge, Ashish Das was not present at his house at Dharmanagar during office hours on 10.03.2015.
41. Learned Sessions Judge was very clear in his finding that it was impossible for a person to come to Dharmanagar from Agartala within three hours either by vehicle or by motor cycle. Thus, the learned trial judge held that Ashish Das, the husband of the deceased, was not present at their house at Dharmanagar on 10.03.2015.
42. After careful analysis of the evidence of PW4 & PW5 it is found that PW4 has only stated that on hearing the sound of "Oh Maa go, Ohh Maa Go" he within a few minutes rushed to the house of Binata and found Binata standing inside the room and also noticed PW6, the tenant lady standing in front of the door of the building without movement. The said PW4 only saw Binata Das working in the deity room and he saw Binata Das was doing something and thereafter going inside he noticed two feet of human body. After Binata pulled the legs then the total burnt body of the deceased came out.
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43. The learned Sessions Judge had tried to get support from these pieces of evidence from the statement of PW5, Hena Rani Dutta who has stated that the appellant visited her house at 4-4.15 pm on an invitation of Bipadnashini puja and within 10 minutes the appellant returned back to her house after taking Prasad and within 2/3 minutes of her departure she heard the cries of Binata Das. The said witness PW5, Hena Rani Dutta also immediately rushed to the hut of Binata and found the body of the deceased in burnt condition in the deity room of the house.
44. The learned trial judge while analyzing the evidence of PW4 and PW5 did not consider taking note of the statement of PW5 and that the appellant also sought for oil and vermillion of the puja for her daughter-in-law. The leaned trial judge after analyzing the evidence of PW5 held that it was an absurd story of the appellant that within 10-15 minutes the deceased could commit suicide and had there been any incident of committing suicide by setting her ablaze etc., then the deceased must have cried and moved here and there and according to him, the deceased was set on fire much earlier than that of those 10 minutes when the appellant was at the house of PW5. If this finding of the learned trial judge is considered to be true for a while, then also it can be said that if Binata set the deceased on fire much earlier than that of the period as we have stated herein, then also the deceased would have cried and moved Page 20 of 29 here and there and persons of the neighboring houses could have witnessed the incident. Furthermore, the medical evidence does not say that the deceased was locked and tightly binded with some solid pillar or thing and her mouth was closed by something incapacitating her to cry loud and move.
45. More so, even PW4, Asit Baran Chowdhury has stated that the relation between the deceased and her in-laws including the husband and the appellant were very cordial and he never informed any quarrel between them.
46. PW5, Hena Rani Dutta also corroborated the said statement of cordial relation between the deceased and her in- laws.
47. The learned trial judge also did not consider the fact that Kerosene oil was found in a drum inside the room of the deity and water was also found in a bucket. The learned judge also did not consider that the appellant cried out by saying "Oh Maa Go, Oh Maa Go" and on hearing cries PW4 had rushed to the hut of the appellant. The tenant lady, Jhuma Debnath (PW6) also rushed to the hut of the appellant who was standing in front of the door without any movement. The presence of tenant lady, i.e. PW6, Jhuma Debnath, cannot be disbelieved as her presence was confirmed by PW4, Asit Baran Chowdhury though she was declared hostile later on. Page 21 of 29
48. In her cross examination, the said witness PW6 has clearly stated that she noticed that there was very cordial relation between the deceased, her husband and her mother in law and from her hut she could see the hut of Poonam and further stated in her cross examination that on 10.03.2015 up to 2 pm she also saw Poonam doing domestic works like other days. Though, this witness was declared hostile, we don‟t find any reason to disbelieve her statement, particularly, in absence of any contrary proof that she never stays at house during that time due to some works. More so, we reiterate that PW4, Asit Baran Chowdhury has confirmed the presence of PW6, Jhuma Debnath at the hut of the appellant at 4/4.30 p.m.
49. The learned trial judge himself after considering the evidence and materials on record came to the conclusion that the prosecution story of torture or assault upon the deceased or the story of demand of dowry therefore fails to show any any proof. As such he is absolved from the charge framed against her under Section 498A/34 and 304 B IPC.
50. Learned Sessions could not justify himself why the appellant would kill the deceased. No motive could be unearthed by the learned Sessions Judge as to why deceased was murdered. In the present case at hand, we, therefore do not find any mens rea behind the death of the deceased. Page 22 of 29
51. In our considered view, the mere statement of PW4, Asit Baran Chowdhury that he saw the appellant pulling the body of the deceased from the hut of the deity room cannot lead to a conclusive proof that it was the appellant who set the deceased on fire. We are not persuaded by the submission of the learned PP that the court may draw presumption under Section 113A and Section 4 of the Evidence Act.
52. In Ramesh & Anr. Vs. State of Chattisgarh, (2001) 9 SCC 618 a larger bench of the apex court has held that before applying Section 113 A the fact cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. The Apex Court at para 12 of the judgment had drawn the principle (SCC. P. 626 Para 12) "12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicabilty of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period Page 23 of 29 of seven years from the date of her marriage,
(iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume"
suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - 'The other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'May presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says-'whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.'
53. In the case at hand, on bare reading of the evidence it cannot be said that the husband or his relatives had subjected the deceased to cruelty at any point of time after her marriage. Even the learned trial judge has held that the prosecution has failed to prove that the husband or the appellant or any of the relatives of the husband had subjected the deceased to cruelty at any point of time after her marriage Page 24 of 29 with Ashish Das. So, in absence of such proof the application of Section 113 A of the Evidence Act will not attract.
54. At this juncture, we have perused the examination of the appellant under Section 313 CrPC where on being asked she has stated that -
"We are innocent and falsely implicated. There was no demand of dowry in the marriage. We never demanded Rs.2 lakhs. I treated Poonam as my daughter and loved her but after her marriage I found her always timid and she did not like to mix with others and did not like to take food with others. Matter was reported to the mother of Poonam but no suitable answer was received. I guessed that as my son remained outside most of the time, due to his profession she might become depressed which she did not disclose to us. She committed suicide putting her in flames. Her parents did not accept the incident of her suicide and being influenced by others due to anger and grief a false case was lodged against us."
55. On being compared her statement under Section 313 CrPC, as stated above, we find that it gets support from the statements of the other prosecution witnesses, that there was very good relation between the deceased and her husband or mother in law. Furthermore, to constitute an offence under Section 302, in our considered view, motive behind the murder, sometimes, plays a vital role, particularly, in a case based on circumstantial evidence which is totally absent in the present case.
56. We also have noticed that PW1, Nakul Das, the father and PW3, Parul Das, the mother were present at the Page 25 of 29 house of the appellant for about one hour after the incident. The police personnel were also present at the place of occurrence for about one hour. They never complained of any grievance at any point of time during that period to any of the police personnel or any of the neighbours who were present at the place of occurrence. Moreover, PW3 has stated that she went to the house of the advocate‟s clerk and the Dharmangar Police station was situated en route to the house of the advocate‟s clerk at Chandrapur but she did not lodge any complaint to the police. It also raised suspicion in the minds of this Court. She has stated that the ejahar was drafted by the advocate clerk and she handed over the same to the police. On the other hand, PW1, the father has stated that he lodged the ejahar and the same was drafted through an advocate clerk but he could not recollect the name. He also identified his signature on the ejahar. So, here also there is serious contradiction which only has deepened the suspicion about the genuinity of the allegations made in the complaint dated 10.03.2015.
57. PW19, Dr. Anup Goswami, the medical officer who conducted the post mortem examination with PW18, Dr. Babul Chakraborty and PW20, Dr. Subrata Biswas have specifically stated that they could not give any opinion in respect of actual cause, i.e. whether it was accidental, suicidal or homicidal. They further have confirmed that during post mortem Page 26 of 29 examination they could not ascertain about the time of death of the deceased from the time of post mortem examination. They have firmly stated that it is true that if a person attempting to commit suicide pours kerosene and set himself/herself in flames and then while trying to survive touches any electric wire, in that case, there might be 100% burnt injury on the spot and thereafter, he or she could not move.
58. The learned trial judge evaluated the evidence of PW5, Hena Rani Dutta and PW4, Asit Baran Chowdhury that the appellant went to her house for puja at 4/4.15 p.m.; stayed there for about 10 minutes and within 2/3 minutes of her departure she heard cries of the appellant; rushed to the place of crime and found the burnt body in the deity room.
59. On the basis of this evidence the learned trial judge had returned the findings of guilt of the appellant that it was impossible for the deceased to set her in flames and within 10 minutes her body became so stiff and so it appeared to him that in all probability the appellant committed the murder either herself or with the help of assistance of others.
60. From a plain reading of his way of appraisal of evidence, it would not be improper to say that his conclusion of guilt is wholly based on suspicion and conjectures. The learned Page 27 of 29 trial judge even himself was not sure actually who were the perpetrators of the crime.
61. The learned trial judge has mentioned many decisions where the Apex Court has laid principles of reading and appreciation of evidence which should be like that the circumstances shall only and only lead to the inference and hypothesis of guilt of the accused and no other alternative proposition can be drawn.
62. Needless to reiterate that suspicion, however strong it is, cannot and must not take the place of legal proof. Circumstance should be like that all evidence in the chain must point towards only and only the guilt of the accused. Though, the learned trial judge had mentioned the celebrated decisions of the Apex Court in Hanumant Govind Nargundkar & Anr. Vs State of Madhya Pradesh, AIR 1952 SC 343 and Sharad Bridhichand Sarada Vs. State of Maharashtra, AIR 1984 SC 1622 but he failed to read it properly and has totally misconstrued the principles drawn in those decisions and he failed to apply those principles in the facts and circumstances of the present case.
63. We are at loss to understand how the learned trial judge could hold that „in all probability' murder might have been caused before going to house of PW.5, is totally missing. Page 28 of 29 The prosecution had totally failed to bring out any ocular or medical evidence to justify that fact.
64. From close scrutiny of the evidence, we further find that it was also not the case of the prosecution that incident occurred much prior to the time when it was detected at the hut of the appellant. In our considered opinion, the learned trial judge has made out a third case which was not expected from a member of judiciary, that too holding the rank of Sessions Judge.
65. In the backdrop of the above factual and legal position, we find no merit in the findings returned by the learned Sessions Judge, North Tripura, Dharmanagar vide his judgment dated 05.07.2017 in connection with Case No. ST/T- 1/000003/2016 and the same deserves to be set aside.
66. Accordingly, the appeal being Crl. A (J) 44/2017 [Binata Das vs. State of Tripura] is allowed and the judgment dated 05.07.2017 delivered by the Sessions Judge, North Tripura, Dharmanagar in Case No. ST/T-1/000003/2016 convicting the appellant and sentencing her to rigorous imprisonment for life is set aside. The appellant be set at liberty forthwith, unless required in some other case.
67. The appeal preferred by the State of Tripura being Crl. A. 32/2017 [State of Tripura vs. Ashish Das] against the acquittal of the respondent-husband of the deceased stands on the same set of evidence and the learned Public Prosecutor has Page 29 of 29 relied upon the statements of PW4, Asit Baran Chowdhury and PW5, Hena Rani Dutta which has been discussed in detail while acquitting the appellant, mother-in-law of the deceased in Crl. A.(J)44/2017, and we find no merit in the State appeal. Accordingly, the same is dismissed.
Send down the LCRs.
ARINDAM LODH, J. SANJAY KAROL, CJ. lodh