Tripura High Court
Shri Ratan Chandra Das vs The State Of Tripura on 28 September, 2020
Bench: S. Talapatra, S. G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) No.57 of 2018
Shri Ratan Chandra Das,
son of late Manoranjan Das,
resident of Rajnagar, Bartila,
P.S. R.K. Pur, District: Gomati Tripura
----Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Petitioner(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of hearing : 13.07.2020
Date of judgment
& order : 28.09.2020
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
Judgment & Order
[S. Talapatra, J.]
This is an appeal under Section 374(2) of the Cr.P.C. against the judgment and order of conviction and sentence dated 05.12.2018 delivered in Case No.S.T.47 (GT/U) of 2015 by the Sessions Judge, Gomati Judicial District, Udaipur. By the judgment dated 05.12.2018, the appellant has been convicted under Sections 498A/304B/302/201 of the IPC and also under Section 4 of the Dowry Prohibition Act, 1961. Pursuant to the Page 2 of 28 finding of conviction, the appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- with default stipulation for commission of offence punishable under Section 302 of the IPC. The appellant has been further sentenced to suffer rigorous imprisonment for 3(three) years and to pay fine of Rs.5,000/- with default stipulation for committing offence punishable under Section 498A of the IPC. He has been further sentenced to suffer rigorous imprisonment for 7(seven) years for commission of offence punishable under Section 304B of the IPC. The convict has also sentenced to suffer rigorous imprisonment for one year for committing offence punishable under Section 201 of the IPC. That apart, the appellant has been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5000/- with default stipulation for committing offence punishable under Section 4 of the Dowry Prohibition Act. It has been directed that all the sentences as aforestated, shall run concurrently and the period of detention undergone by the appellant shall be set off against the substantive term of imprisonment as per provisions of Section 428 of the Cr.P.C.
02. Genesis of the prosecution against the appellant can be located in the complaint dated 23.03.2014 [Exbt.3] filed by one Kabita Saha [PW-1] revealing that her daughter namely Page 3 of 28 Rinku Saha was married to the appellant. After marriage, the appellant and other accused persons namely Ranjit Das [the younger brother of the appellant], Manoranjan Das [the father of the appellant], Smt. Shukla Das [the wife of Sri Ranjit Das] and wife of Shri Manoranjan Das used to torture her daughter physically on different pre-texts and on unlawful demand. Her daughter had informed to PW-1 and their relatives of the said experience. A sum of Rs.10,000/- was given 4/5 months before the occurrence, but the torture did not recede. On 23.03.2014 at about 12.30 p.m., the accused persons, according to the complainant, had killed her daughter by strangulation and thereafter burnt her body by pouring kerosene oil. Ratan Das and his brother Ranjit Das had fled away from the house in the wake of that occurrence. Having received information from the people of Rajnagar, the complainant went to the place of occurrence and found her daughter lying dead behind a hut with several burn injuries. In the place of occurrence, she found the father of the appellant and the wife of the younger brother of the appellant. PW-1 has stated in the complaint that it was her firm belief that the accused persons [as noted in the complaint] killed her daughter as the sum of Rs.40,000/- was not paid to them. On the basis of the said complaint, Udaipur women P.S. Case Page 4 of 28 No.33/2014 was registered under Sections 498A/304B of the IPC and taken up for investigation.
03. On completion of the investigation the final police report was submitted chargeshetting the appellant Ratan Das and Smt. Jyotsna Das (the mother of the appellant), Shukla Das (Debnath) and Ranjit Das. Since the major offence is triable by the Sessions Judge, the police papers were committed to the court of the Sessions Judge, Gomati Judicial District, Udaipur and the case was registered as S.T.47 (GT/U) of 2015 in the sessions division. The trial judge thereafter framed the charge against those four accused persons under Sections 498A, 304B, 302 read with Section 34 and Section 201 of the IPC. The charge was also framed under Section 4 of the Dowry Prohibition Act, 1961. The accused persons pleaded not guilty and claimed to be tried.
04. In order to substantiate the charge as many as 15(fifteen) witnesses were examined by the prosecution. That apart, 9(nine) documentary evidence including the post-mortem examination report [Exbt.9] were admitted in the evidence. After the prosecution evidence was recorded, the appellant and other accused persons were separately examined under Section 313 (1)(b) of the Cr.P.C. To have their response in respect of incriminating materials those surfaced in the evidence, the Page 5 of 28 appellant in particular has reiterated the plea of innocence by stating that the evidence as surfaced incriminating them are all fabricated for purpose of implicating them. The defence however did not propose to adduce any evidence. As such, having appreciated the evidence recorded in the trial, the trial judge returned the finding of conviction as stated. The said finding of conviction has been challenged in this appeal.
05. Mr. S. Lodh, learned counsel appearing for the appellant has stated that the prosecution has been launched against the appellant or for that matter, against the other co- accused persons on surmise and thereafter, the evidence has been concocted or fabricated. In this regard Mr. Lodh, learned counsel has drawn our attention to the testimony of PW-1 who has categorically stated in the trial that 'Till her death relationship between Rinku and her husband and his near relatives were good.' When she went to the house of the appellant she heard that:
"Rinku died due to fire incident. Her dead body was lying in her bed room. But I did not see the dead body. I do not know anything more about the death of Rinku and I have no grievance against Ratan Ch. Das, Ranjit Das, Jyotsna Das and Sukla Das. I lodged the ejahar in connection with the death of Rinku at Women P.S., Udaipur. I lodged the ejahar to know reason of the death of Rinku. At the time of lodging of ejahar, due to severe shock, I was not in a position to see who wrote the ejahar and what was written there. I cannot recollect as to who produced the said ejahar and I simply signed in the ejahar. These are my signatures in the ejahar and on identification four signatures of witness in the ejahar is Page 6 of 28 marked as Ext.1 series. I was examined by darogababu in connection with this case."
06. After the said statement was recorded, the prosecution had prayed for declaring PW-1 hostile as she had deviated from her previous statement, recorded under Section 161 of the Cr.P.C. Thereafter, the prosecution carried out the cross-examination, but PW-1 has denied to have made such statement as recorded by the police officer during the investigation. In the cross-examination, PW-1 has further stated that after divorce with the first wife, Ratan married her daughter. Often times PW-1 used to visit the matrimonial home of Rinku. 3/4 days prior to the death of Rinku, she met her for last occasion. During lifetime of Rinku, she never lodged any allegation against Ratan and his family members. At the time of marriage, there was no demand of dowry from the side of Ratan or his family members, even not after the marriage there was such demand. In the matrimonial home, according to the complainant [PW-1], Rinku was leading happy conjugal life.
07. Mr. Lodh, learned counsel thereafter has took us to the testimony of PW-3, Bapan Saha who is the cousin brother of the deceased [Rinku Saha]. He has stated in the trial as follows:
"On 23.3.14 at about 12.30 p.m. in the noon my another cousin namely, Mithun Saha informed me over phone that due to fire incident Rinku sustained burn injury and consequently Page 7 of 28 died. Thereafter I went to the house of Ratan Ch. Das and did not find Ratan there. But neighbouring people told me that his father and mother were present in the house. There I found that dead body of Rinku was lying on the back side of the house and there were severe burn injuries on her person. Often Rinku would tell me and my other family members over phone that her husband would physically torture her on demand of money but she did not tell us about the exact amount of such demand. About one year prior to the death of Rinku, one day at about 12.30 a.m. in the night I along with my mother Namita Saha, my uncles Janardan Saha and Chandan Saha went to the house of Rinku, getting phone call from Rinku that her husband had brutally tortured her physically. When we went there, brother of Ratan threatened us not to come there but I have forgotten the name of brother of Ratan. I had suspicion that Ratan Ch. Das set fire on Rinku on that day as earlier he was physically torturing her."
[Emphasis added] Mr. Lodh, learned counsel appearing for the appellant has pointed out that this version of PW-3 is improved substantively deviating from the statement he made to the police during the investigation.
08. In the cross-examination, PW-3 has stated that he did not specifically mention to the police that over telephone he got the information about physical torture on Rinku. He did not personally say as to whether the parents of Ratan were present in the house on 23.03.2014 as he did not know them personally. Further he has stated in the cross-examination that 'I did not specifically state to the I.O. that when about one year ago one day in the night we went to the house of Rinku, at that time we got information of physical assault of Rinku by Ratan. I also did not state to the I.O. that brother of Ratan threatened us to go out of their house on that night. I also did not state to the police Page 8 of 28 that I had suspicion that Ratan Ch. Das set fire on Rinku. Darogababu did not examine me on any occasion in connection with this case, rather she talked with my parents. Marriage of Rinku was solemnized in the house of Ratan Ch. Das.' In the further cross-examination, all the suggestions put to PW-3 by the defence, contrary to what he has stated in the examination-in-chief, he has denied all such suggestion.
09. From reading of the testimony of PW-4, Smt. Namita Saha, it would be apparent, according to Mr. Lodh, learned counsel that the version of PW-4 has been improved in the trial. As a result, in the cross-examination PW-4 has admitted as under:
"I did not specifically state to the police that actually Rinku telephoned me on the previous day of her death to give information of physical torture upon her by her father in law. I did not specifically state to the police that Rinku over telephone informed me fact of torture upon her. I did not specifically state to the police that at the time of payment of Rs.10,000/- by mother of Rinku to Ratan, I was personally present. I did not specifically state to the police that on 3/4 occasions I went to the house of Rinku. I stated to the police that on 3/4 occasions when I went to the house of Rinku she told me that Ratan had physically assaulted her. Attention of the witness is drawn by Learned defence counsel to her previous statements recorded u/s 161, Cr.P.C. to which she admits that there is no specific statement that Rinku had told her that Ratan would torture her. However, she replies that there is such statement that on different occasions, husband and other in laws of Rinku would torture her. I cannot say the exact dates of my visits to the house of Rinku on 3/4 occasions."Page 9 of 28
Mr. Lodh, learned counsel has thus contended that PW-4 has become unreliable for such improvement. No part of her testimony can be believed by the court.
10. Mr. Lodh, learned counsel has also drawn our attention to the testimony of PW-12, Mina Kumari Debbarma, the investigating officer. PW-4 has stated in the cross-examination that PW-4, Namita Saha did not specifically state to her that on 3/4 occasions when she went to the house of Rinku, Rinku told her that Ratan had physically assaulted her. However, the said witness has also stated that on different occasions, husband and in-laws of Rinku tortured her. According to Mr. Lodh, learned counsel the entire conviction has been based on the post-mortem examination report which has been introduced and supported by PW-13, Dr. Dhruba Das. PW-13 has stated that no external injury except the burn injuries were found but congestion of neck muscle was evident. Such congestion is sign of strangulation. Larynx was congested and edematous. Hyoid bone was fractured. Tongue bite was found and seen. No inhalation burn was found in nostrils, oral cavity and pharynx. Brain and lungs were congested and edematous. Heart, liver, kidney and spleen were congested. PW-13 has stated that after post-mortem examination, it was opined that cause of death was asphyxia which was due to ante Page 10 of 28 mortem strangulation and homicidal in nature, and burn was post mortem and homicidal in nature.
11. According to Mr. Lodh, learned counsel, the rule of prudence would refrain the court from affirming a finding of conviction for committing murder solely on the basis of post- mortem examination report. He has further submitted that the trial judge has drawn presumption under Section 113 B of the Indian Evidence Act, without any evidence of harassment for dowry soon before the death. Added to that, PW-1 did not support the prosecution case in the trial. Therefore, the conviction under Section 304B of the IPC is unsustainable. For the same reason, in absence of evidence, the conviction under Sections 498A and 201 of the IPC and Section 4 of the Dowry Prohibition Act cannot be sustained. To buttress his submission Mr. Lodh, learned counsel has relied on a decision of this court in Bhusan Tripura vs. State of Tripura reported in (2017) 2 TLR 593. In that case the circumstances did not form any chain so complete to discard the hypothesis of innocence. That apart, the decision of the apex court in Sahebrao Mohan Berad vs. State of Maharashtra reported in (2011) 4 SCC 249 and Neerukonda Parabrahma Murthy and Another vs. State of A.P. reported in (1997) 11 SCC 408 have been discussed in Page 11 of 28 Neerukonda Parabrahma (supra). It has been observed in Neerukonda Parabrahma (supra) as follows:
"It was normally not possible to throttle another adult by a single assailant without causing injury to the assailant himself because the resistance of the deceased would be very forceful with her hands unless she was trussed up or her hands held up by someone else, or at least without causing scratch 23 Crl. A. (J) No.47 of 2013 Page 23 of 24 injuries on her own body. Here, there is no case that the deceased‟s hands were tied down before the act of throttling was perpetrated. In such a situation, the very fact that the deceased had injuries only on the neck and not on any other part of the body would lead to the irresistible conclusion that more than one assailant would certainly have been involved in the commission of the murder."
[Emphasis added] But in Sahebrao Mohan Berad (supra), the apex court has opined thus:
"The doctor who examined the deceased and conducted the postmortem is the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence."
12. Mr. Lodh, learned counsel has in his closing comment has observed that there is no cross-examination of worth mentioning in respect of the process of post-mortem examination or the opinion formed on the basis of the findings therefrom.
13. In reply, Mr. S. Ghosh, learned Addl. P.P. has stated that there is sufficient evidence of harassment on demand of dowry, though PW-1 has turned hostile by deviating from the statement she made to the police and in the complaint. In this regard Mr. Ghosh, learned Addl. P.P. has referred to the testimonies of PWs-3 and 4. PW-3 has categorically stated in the Page 12 of 28 trial that Rinku did tell him and his other family members over phone that her husband did physically torture her on demand of money. One day in the midnight, he got a call from Rinku that her husband had brutally tortured her physically and when they went there, the brother of the appellant threatened them not to be there. PW-4 has corroborated that Rinku was physically tortured and on 3/4 occasions she along with some other persons from her neighbourhood went to the house of Rinku on having the information of physical torture. She had tried to mitigate the matter on every occasion. She got the information of death of Rinku from her son. She has categorically stated that she had suspicion that the appellant had murdered Rinku by throttling and thereafter set fire on her body. 5/6 months prior to her death, the appellant demanded Rs.50,000/- from Rinku and had physically tortured her on such demand. Mother of Rinku paid Rs.10,000/- to the appellant in her presence. But mother of Rinku had resiled from her statement in the trial. On the evening of previous day of death of Rinku, Rinku informed her over phone that her father-in-law had assaulted her physically by pulling her hair.
14. Mr. Ghosh, learned Addl. P.P. has submitted that the previous statement is available in the ejahar [Exbt.1] and that Page 13 of 28 has been proved by PW-7 (the scribe). The previous statements as deviated by some of the witnesses have been proved by PW- 12 (the investigating officer). That apart, Mr. Ghosh, learned Addl. P.P. has quite categorically stated that the finding of the trial judge that on scrutiny of the evidence of PWs even though PWs 1 and 2 have turned hostile but there is convincing materials in the evidence of PW-3 about commission of the bridal torture on dowry demand by the accused persons. From the evidence of PW-3, it has appeared to the trial judge that on 23.03.2014 at about 12.30 p.m. in the noon, his another cousin namely Mithun Saha informed him over phone that due to fire incident Rinku sustained burn injury and died. When he went to the house of the appellant, he did not find the appellant there. According to Mr. Ghosh, learned Addl. P.P. even though the said fateful occurrence had taken place in his residence, the appellant did not explain how the death was caused by strangulation and thereafter body of Rinku was burnt. In this regard Mr. Ghosh, learned Addl. P.P. has taken us to the memorandum of examination under Section 313(1)(b) of the Cr.P.C. where we find that the appellant has simply denied knowledge about the medical opinion. He has made no other explanation in the Page 14 of 28 examination-in-chief or by way of adducing any evidence in his defence.
15. For purpose of appreciating the pleas raised by the counsel for the respective parties it would be apposite and expedient to make a meaningful survey of the evidence recorded in the trial. PW-1, Kabita Saha, the complainant and mother of the deceased, as stated, turned hostile and completely disowned her statement in the ejahar. During her cross-examination, she has denied her statement in respect of payment of Rs.10,000/- to the appellant or her statement in respect of demand of Rs.50,000/- by the appellant, and the different episodes of torture or threat. PW-1 has acceded that all these allegations are available in the statement as recorded under Section 161 of the Cr.P.C. Even in the cross-examination she has categorically stated that at the time of marriage, there was no demand of any dowry from the side of appellant nor after marriage, there was any demand from the appellant. In the matrimonial home, Rinku [the deceased] was leading happy conjugal life.
16. PW-2 Mithun Saha has simply stated that on 23.03.2014 in the noon at about 1 p.m. one Pratima Rani Dey, an acquaintance, telephoned him to inform that a fire incident had taken place in the house of the appellant. But he did not Page 15 of 28 enter in that house. From the roadside, she noticed that the dead body of Rinku was lying on the back side of the house in the burnt condition. Then, she informed the matter to Namita Saha [PW-4], maternal aunt of Rinku. He has also stated that relationship between Rinku and Ratan was good. PW-3, whom the trial judge has relied heavily has been discussed extensively while taking note of submission of Mr. Lodh, learned counsel appearing for the appellant. In the cross-examination, all suggestions contrary to what PW-3 has stated during the examination-in-chief have been denied by him.
17. PW-4, Namita Saha is the maternal aunt of Rinku. She has stated that after one and half months of the marriage the appellant, his parents and his brother, Ranjit used to torture Rinku physically on this or that pretext. Rinku used to tell about the episodes over phone. On 3/4 occasions, she along with some other persons from the neighbourhood, went to mitigate the matter. On going there, they noticed that Rinku had been physically tortured. About two years ago, one day her son Bapan Saha [PW-3] informed her over phone that the dead body of Rinku was lying on the back side of the house of Ratan [the appellant] with severe burn injuries. She has also suspected Ratan for killing Rinku by throttling and thereafter setting fire on Page 16 of 28 her body. Prior to 5/6 months of death of Rinku, Ratan had demanded Rs.50,000/- from Rinku and had physically tortured her on such demand. Thereafter, mother of Rinku paid Rs.10,000/- to Ratan in her presence. On the evening of the previous day of death of Rinku, Rinku had informed her that her father-in-law assaulted her physically by pulling her hair. However, in the cross-examination the defence has established that all those statements in respect of fact of torture, payment of Rs.10,000/- by the mother of Rinku or of physical assault are not found in the previous statements. But the statement that Rinku was tortured by her husband and other in laws was found in the previous statement. The general suggestions, contrary to what has been stated in the examination-in-chief by PW-4 have been denied. PW-5, Sarada Charan Jamatia, a fireman, did not state anything of material importance.
18. PW-6, Debasish Roy Barman is a friend of the appellant. He has stated that he did not have any specific knowledge about the relationship between Ratan and Rinku. But apparently, they seemed happy. Namita Saha [PW-4] during that period used to reside in their house as monthly tenant. After one month of marriage of Rinku, Namita Saha left their house as she was provided a govt. quarters. Immediately after marriage, one Page 17 of 28 or two occasions Rinku came to their house to visit Namita Saha. He talked to Rinku at that time. PW-6 was declared hostile at the prayer of the prosecution. But he has denied to have made the statement as recorded as the previous statement. Even though those statements are found in the statement recorded by the police under Section 161 of the Cr.P.C.
In the cross-examination by the defence, PW-6 has clearly stated Rinku never talked of any grievance about her husband.
19. PW-7, Shri Ranjit Debnath, is the scribe who wrote the ejahar [Exbt.1]. He has stated that as per dictation of PW-1 he wrote the ejahar and thereafter he read out the content to PW-1 and she put her signature being satisfied that the writing had been prepared in the way, she had narrated. He has denied the suggestion that he did not write the ejahar as per her dictation.
20. PW-8, Debasish Debbarma forwarded the samples of viscera to the State Forensic Science Laboratory (SFSL) for examination. For a very short period, he was in charge of the investigation as the investigating officer (PW-12) for sometimes was on leave.
21. PW-9, Smt. Sunanda Chakraborty, a Constable of police, was posted at R.K. Pur women police station on Page 18 of 28 22.04.2014 and stood witness to the seizure of viscera by the seizure list [Exbt.2] on 22.04.2014. PW-10, Smt. Minati Debnath was also witness to the seizure of viscera on 22.04.2014. PW-11, Madhabi Debbarma, was the Officer-in-Charge of R.K. Pur women police station on 23.03.2014. She had received one telephonic information about the death of one Rinku Saha (Das). She had entered the information in the station diary as GD Entry No.09 dated 23.03.2014. Thereafter she had visited the place of occurrence and found the dead body of Rinku Saha (Das) lying on the backside of that house. She had instructed Sakuntala Debbarma [PW-15] to carry out the inquest over the dead body and accordingly the inquest report was prepared. After receipt of the complaint [Exbt.1], she had registered the case and endorsed the investigation to PW-12.
22. PW-12, Mina Kumari Debbarma is the investigating officer and she has narrated how she had carried out the investigation. She had visited the place of occurrence and prepared the site map [Exbt.4] with index. She had seized one 5- litre plastic container having some amount of kerosene oil and one match-box by preparing the seizure list [Exbt.5]. On the same date, she had examined a few witnesses. She arrested Manoranjan Das and Shukla Debnath as they had been produced Page 19 of 28 in the police station by the OC, R.K. Pur women police station. She had recorded the statements of a few more witnesses and thereafter, had arrested the appellant. On 22.04.2014, she seized the stomach content (viscera) with preservative in two jars by the seizure list [Exbt.2]. She had examined few more witnesses. She has disclosed their names in her statement in the trial. She has also stated due to her short period of leave, PW-10 looked after the investigation. She has affirmed the statement of PW-6 which was recorded by her, but that was denied by PW-6 in the trial. Similarly, the statement of PW-1, as resiled, has been confirmed by her in the trial. The text of those statement have been reproduced in her deposition. In respect of the statement of PW-4, PW-12 has stated that she did not specifically state that on 3/4 occasions when she went to the house of Rinku or Rinku told her that Ratan had physically assaulted her. However, PW-12 has confirmed that PW-4 had stated that on different occasions the victim's husband and in-laws tortured her. The suggestions as made contrary to what she has stated in the examination-in-chief has been denied by her.
23. PW-13, Dr. Dhruba Das is one of the doctors who conducted the post-mortem examination over the dead body of Rinku Das aged about 19 years at TSD Hospital in connection Page 20 of 28 with GD Entry No.9/14 dated 23.03.2014. On examination, they had found as follows:
"Rigour mortis was found and PM staining was seen and fixed. Kerosine oil smell was found in the whole body and burnt clothing. The burn was 95% on the whole body with deep burn in the face, head and neck. No burn was found in both feet i.e. ankles and in perineum. No other external injury was found. Congestion of neck muscle was found i.e. sign of strangulation. Larynx was congested and edematous. Hyboid bone was fractured. Tongue bite was found and seen. Nail beds were empty. Deceased was on menstrual cycle with pad. NO inhalation burn was found in nostrils, oral cavity and pharynx. Brain and lungs were congested and edematous. Heart, liver, kidney and spleen were congested. All other body organs and bony structures were healthy and intact."
Thereafter, they have sent the stomach contents with preservative for chemical examination and, according to them, death took place 10-18 hours prior to the post-mortem examination and the cause of death was asphyxia which was due to ante-mortem strangulation which is homicidal in nature and the burn was post mortem and homicidal in nature. He has also stated that Dr. Debasish Paul and Dr. Sanchari Das were part of the team which carried out the post-mortem examination. After receipt of the chemical examination report, the cause of death from poisoning was wholly discarded and accordingly a note was put on the post-mortem examination report. In the cross- examination, there had been simple denial in respect of the opinion.
Page 21 of 28
24. PW-14, Suman Kumar Chakraborty who was posted as the Deputy Director of Tripura State Forensic Science Laboratory (SFSL) had carried out the chemical examination of the samples [Exbts. A and B] sent to SFSL by PW-10 for forensic examination. In his report [Exbt.6], he has categorically observed that the presence of common organochloro, organophosphorus and carbmate pesticide and ethanol was negatived. In the green coloured plastic container (Exbt.C] presence of kerosene oil was found. PW-15, Sakuntala Debbarma had carried out the inquest procedure. She has introduced the inquest report [Exbt.10] in the evidence and accordingly, the same was admitted in the evidence.
25. On evaluation of the site map it appeared that it lacked even of the essential details. There is nothing except the place of occurrence. No other land marks surrounding the place of occurrence have been shown. It is therefore not helpful to deduce whether there are any neighbourhood houses where the people were living. The forensic examination report [Exbt.6] has been introduced and explained by PW-14. In the inquest report also tongue-clenched by teeth was noted. At the time of recording the submission of Mr. Ghosh, learned Addl. P.P., we have noted the response of the appellant during his examination Page 22 of 28 under Section 313 (1)(b) of the Cr.P.C. In respect of the involvement of the appellant, the trial judge has observed that the post-crime conduct of the appellant, in conjunction with the oral evidence of cash demand, torture by the appellant, and the medical evidence of three-member team saying that the death was by ante-mortem strangulation and the burning was post mortem, has unerringly established that the appellant killed the deceased by strangulation and then set her dead body on fire to make it look like suicide by burning. If it was a case of suicide, they would not have fled away from the house instead of taking the victim to the hospital. Had it been a case of suicide by burning, the normal conduct of the accused-husband (the appellant) and his brother would have been to shift her to hospital for immediate medical help. But instead of doing that the accused-husband fled from the house which indicated to his guilty mind. Moreover, the victim died in the house of the accused husband and as such, she being his wife, he owed a duty to explain how she died. But the accused has not offered any such explanation. Had it been a case of ante mortem suicide by burning, the victim would have raised hue and cry, out of extreme pain, and that would have attracted the attention of the neighbouring people including the accused persons who were her Page 23 of 28 inmates. But there is no such evidence of any hue and cry by the victim or gathering of neighbouring people and that by itself is proof of the fact that the victim was first killed and then her dead body was set on fire and that how the burning was without painful cry. This proposition gets support from the medical opinion about the death, caused by ante mortem strangulation. Therefore, the cumulative effect of the entire gamut of incriminating circumstances leads to the inference that the appellant had strangulated Rinku (the deceased) and burnt her to efface the evidence of murder.
26. While evaluating the evidence, we have noticed that mother of the deceased [PW-1] who filed the ejahar [Exbt.1] did not support the case as projected by her in the ejahar. On the contrary, she has stated that relation of her deceased daughter and her husband and his near relatives was good. She has stated that her dead body was lying in 'her bedroom' contrary to the other witnesses who visited the place of occurrence and found the dead body at the backside of the residential hut of the deceased and the appellant. PW-1 has stated that she failed to know the reason of her death. She has further submitted that the appellant and the deceased were living a happy life. PW-2, however, has confirmed that on having the telephonic Page 24 of 28 information he had rushed to the house of the appellant and found the dead body of the deceased lying on the backside of the house in burnt condition. He has also stated that the relation between the appellant and the deceased was good. These two witnesses did not give any evidence in respect of burning or death of Rinku Saha (Das), the deceased. But PW-3 has stated that the dead body of Rinku (the deceased) was lying on the back side of the house and there were severe burn injuries on her person. He has stated that Rinku used to tell him and his family members over phone that her husband tortured her on demand of money, even though, he did not tell about the exact amount of money. That episode, however, he did not disclose while making the statement to the police officer.
27. PW-4, aunt of the deceased, has stated that Rinku was subjected to brutal torture and on 3/4 occasions, she did intervene in the matter. On the day of occurrence she was informed by her son [PW-3], that about 12.30 p.m. Rinku [the deceased] had expired. She did not categorically state to the police officer that on the previous day, the deceased called her to inform about the assault perpetrated on her by her father-in-law. PW-4 had also found the dead body of Rinku lying in the backside of the house of the appellant with severe burnt injuries. PW-5, a Page 25 of 28 fireman who went to recover the body has also stated that the dead body was found in the backside of their house. PW-7, the scribe has categorically stated that he had written the ejahar on dictation of the fact by PW-1. He has identified the writing [Exbt.1]. PW-11 having information of the occurrence had rushed to the place of occurrence and found the dead body of Rinku Saha (Das) was lying in the backside of that house. While verifying the inquest report, one observation has attracted our attention. The entire body was found burnt but both the feet did not have any injury or hurt. According to us, this observation sheds light indicating that Rinku (the deceased) did not self- immolate. PWs-3 and 4 cannot be disbelieved as their statements are natural and free from exaggeration. Thus, the fact of physical torture has been proved. PW-13 as we have noticed has carried out the post-mortem examination having assisted by two other medical officers and he has categorically observed that during the post-mortem examination, congestion of neck muscle was clearly found congestion of neck-muscle is definite indication of strangulation. Laryns was congested and edematuous. Hyoid bone was fractured. Tongue bite was found and seen. Most importantly no inhalation burn was found in nostrils and in oral cavity and pharynx. Brain and lungs were congested and Page 26 of 28 edematous. Heart, liver, kidney and spleen were congested. Time of death was 10-18 hours prior to the time of the PM examination. They have stated categorically as noted earlier that the cause of death was asphyxia which was due to ante mortem strangulation and 'homicidal' in nature and burn was post mortem and homicidal in nature. Thus, according to us, the circumstantial evidence viz. death by ante-mortem strangulation and post-mortem burning resulted from fractured matrimonial relation. Absconding without attending the charred wife in the circumstances as emerged is of material importance. We know in all cases that may not bring about same inference. This conduct has clearly established that the appellant had perpetrated that offence and in order to efface the evidence, body of his wife was burnt by him inasmuch as both the feet was found unaffected by fire . Such phenomenon cannot be related to a case of self- immolation. But when by the chain of circumstances, the needle is pointed at the appellant, the appellant has miserably failed to explain how the victim has strangulated, how the victim suffered 95% burn injuries and why he had fled away from the place of occurrence. His non-explanation becomes an important piece of circumstantial evidence. If each of the pieces isstiched together it Page 27 of 28 would completely destroy the hypothesis of sinnocence of the appellant.
28. As such, this court is of the view that there is no infirmity in the finding of conviction against the appellant under Section 302 of the IPC. Since PW-1 did not support the demand of money or payment of money and existence of such demand whether the victim suffered harassment soon before her death remains in the penumbra and hence, this court is inclined to give benefit of doubt to the appellant and accordingly the appellant is acquitted from the charge under Sections 498A and 304B of the IPC on benefit of doubt. The appellant is also acquitted from the charge under Section 4 of the Dowry Prohibition Act, 1961. We, however, do not find any infirmity in the finding of conviction under Section 201 of the IPC as we have already observed that in order to efface the evidence, the dead body of Rinku Saha (Das) was burnt at the backyard of the hut. Hence we affirm the conviction of the appellant under Sections 302/301 of the IPC. The sentence as awarded by the Sessions Court by the order dated 05.12.2018 for commission of offence punishable under Section 302 of the IPC and under Section 201 of the IPC is affirmed. As the appellant has been acquitted from the charges under Sections 498A and 304B of the IPC and under Section 4 of Page 28 of 28 the Dowry Prohibition Act, 1961. The order of sentence as resulted for commission of those offences stands set aside. Consequently, the appellant shall serve out the sentence as awarded for commission of offence punishable under Sections 302 and 201 of the IPC. Those sentences shall run concurrently and the detention suffered by the appellant during investigation and trial be set off from the sentence in terms of Section 428 of the Cr.P.C.
In the result, the appeal is partly allowed.
Send down the LCRs forthwith.
JUDGE JUDGE Moumita