Tripura High Court
Sri Rajib Malakar vs The State Of Tripura ----Respondent(S) on 8 October, 2021
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 25
HIGH COURT OF TRIPURA
AGARTALA
CRL. A.(J) 45 of 2019
1. Sri Rajib Malakar,
son of Sri Ranjit Malakar, resident of Sanjoy Colony,
Kameswar, P.S. Dharmanagar, District- North Tripura
2. Smt. Sukriti Malakar
wife of Sri Ranjit Malakar, resident of Sanjoy Colony,
Kameswar, P.S. Dharmanagar, District- North Tripura
3. Sri Raju Malakar
son of Sri Ranjit Malakar, resident of Sanjoy Colony,
Kameswar, P.S. Dharmanagar, District- North Tripura
----Appellant(s)
Versus
The State of Tripura ----Respondent(s)
For Appellant(s) : Mr. PK Biswas, Sr. Advocate
Mr. P. Majumder, Advocate
For Respondent(s) : Mr. Ratan Datta, PP
Date of hearing : 15.09.2021
Date of delivery of judgment
& Order : 08.10.2021
Whether fit for reporting : Yes
BEFORE
HON'BLE THE CHIEF JUSTICE AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J.)
This appeal assails from the judgment and order of conviction and sentence dated 09.07.2019 passed by the learned Sessions Judge, North Tripura, Dharmanagar in case No. S.T. (Type-1) 06 of 2017 whereby and whereunder, the appellants were convicted and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 10,000/- with default stipulation for the offence punishable under Section 302 read with section 34 of the IPC, and further sentenced to suffer rigorous imprisonment for 3 years with a fine of Page 2 of 25 Rs. 10,000/- with default stipulation for the offence punishable under Section 201 read with Section 34 of the IPC.
2. Heard Mr. PK Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellant as well as Mr. Ratan Datta, learned PP appearing for the respondent.
3. The prosecution case was set in motion with the complaint lodged by one Bappa Malakar alleging that, on 04.11.2015 at night his younger sister, namely, Mamata Malakar (26 years) was killed by the appellants, namely, Rajib Malakar (husband), Smt. Sukriti Malakar (mother-in-law) and Sri Raju Malakar (brother-in-law of the deceased), by way of assaulting, and thereafter, they hanged her body and that at around 8.00 a.m. on 05.11.2015, they informed him over telephone that Mamata was sick.
4. On receipt of the complaint (Exhibit-1), the Officer-in-Charge of Dharmanagar Women police station had registered a case against the appellants under FIR No. 107 of 2015 under Section 302/34 of the IPC on 05.11.2015 at 1358 hours. Being endorsed, the investigating officer, namely, Smt. Bandana Choudhury (WSI) visited the place of occurrence, prepared handsketch map and index, recorded the statement of the available witnesses, seized one mobile alongwith SIM-card from the house of Rajib Malakar, the appellant no.1, and further seized samples of liver, spleen, stomach of the deceased as well as her wearing apparels. The samples were sent to State Forensic Science Laboratory for examination. She also collected the report and after being prima facie satisfied submitted charge-sheet against 3 accused persons, the appellants herein.
5. With the commencement of trial, charges were framed against the appellants under Sections 302/201 read with section 34 of the IPC that they with common intention had committed murder of Mamata Malakar, wife of Sri Rajib Malakar, appellant no.1, and further with the intention to suppress their common intention, they informed the complainant that his sister was Page 3 of 25 suffering from illness, to which the appellants pleaded not guilty and claimed to be tried.
6. To substantiate the charges, the prosecution had examined 18 (eighteen) witnesses and introduced as many as 13 (thirteen) documents including the FIR in prescribed format (Exhibit-9) and (Exhibit 1 and 1/1). After completion of recording of prosecution evidences, the appellants were examined under Section 313 Cr.P.C. where they reiterated their plea of their innocence. After hearing argument of both the parties, the learned Sessions Judge held the appellants guilty of committing offences, as narrated above, and sentenced them, as aforementioned. Hence, this appeal before this court.
7. Mr. Biswas, learned Sr. counsel appearing for the appellants has submitted that the judgment of conviction and sentence passed by the trial court suffers from serious illegality. According to learned senior counsel, the findings returned by the learned trial Judge were passed merely upon conjectures and surmises with much emphasis upon the evidence of PW-8, Sri Krishna Malakar, one of the brothers of the deceased, Mr. Biswas had submitted that from his evidence it became crystal clear that virtually the doctors did not conduct the post mortem. Learned senior counsel had drawn our attention to the following statement of PW-8 in his chief-examination:
"When the postmortem was going on I was not allowed to see the dead body. Medical officer was outside the morgue and body was postmortemed by sweeper".
Main contention of learned senior was that since the doctors did not conduct post-mortem, and it was conducted by sweeper, the statement of post- mortem doctors that the death of the deceased was caused by strangulation and homicidal in nature, had not been substantiated. To demolish the judgment of conviction and sentence learned senior counsel contended that none of the prosecution witness had ever seen the appellants to inflict torture upon the deceased.
Page 4 of 258. On the other hand, Mr. Ratan Datta, learned PP strongly relied upon the findings arrived at by the learned Sessions Judge. Learned PP contended that the statements of PW-8, as pointed out by the learned senior counsel should be treated as a minor discrepancy and for that matter entire prosecution case ought not have been thrown away. Learned PP had drawn our attention to the opinion of the doctors, PW-5, PW-6 and PW-11.
9. Keeping in mind the aforesaid submissions, we have proceeded to re- appreciate and re-evaluate the evidences and materials on record as adduced by the prosecution witnesses.
(i) PW-1, Bappa Malakar, the complainant, deposed that his deceased sister and Rajib Malakar, appellant no. 1 had a marital life of 8 years. At the time of death of his sister, she had a son, namely, Akash Malakar, aged about 6 years. He received information of death of his sister Mamata Malakar from his elder brother Krishna Malakar (PW-8). He rushed to the house of Rajib Malakar. He had seen the deadbody in hanging condition but her feet was touching the ground and her entire body was in air. Her body was hanging from a „beam‟ (complete supporting structure of the column) wherefrom her body was found hanging by means of cloth. His sister used to reside in a joint family of the appellant. He further deposed that though he involved the appellants with the crime but, he had no complaint against the father-in-law of his deceased sister as he was a good person. Moreso, the father-in-law of his sister was on his duty at PWD office as nightguard. He identified his signature in the ejahar (complaint) as Exhibit-1. Police had prepared the inquest report before his arrival at the place of occurrence. He put his signature in the inquest report, which was identified as Exhibit-2. Police recorded his statement after registration of the case. Deposing further, PW-1 stated that his deceased sister reported him on several occasions that her husband i.e. Rajib Malakar used to maintain an illicit relation with another girl, and used to Page 5 of 25 talk with that girl while he was sleeping with his sister. He further deposed that his sister used to be harassed at her matrimonial house. In his deposition, PW-1 stated that the appellants used to sell country-made liquor from their house.
During cross-examination, PW-1 denied that he had falsely implicated the appellants. He admitted in his cross-examination that he did not state to the police that his sister reported to him that while she was with her husband on bed, her husband used to talk with another female neglecting her. Being further confronted, PW-1 admitted that he did not state to the police that in the house of the accused persons country made liquor used to be sold.
(ii) PW-2, Mithun Malakar, being one of the brothers of the deceased had deposed the same facts, as deposed by PW-1.
(iii) PW-3, Smt. Supta Malakar, being the wife of PW-8 also deposed in the same tune. Nothing material was elicited from her cross examination. She wanted to establish the extra marital relationship of Rajib Malakar, according to her, led the appellants to kill her deceased sister-in- law by strangulation.
(iv) PW-4, Pranesh Chandra Das, deposed that Rajib Malakar was known to him and he had no knowledge about his extra-marital affairs.
(v) PW-5, Dr. Asis Kumar Sen, deposed that he alongwith Dr. Sandipak Roy and Dr. Apratim Mohan Debbarma had joinly conducted the post-mortem examination over the dead body of the deceased. He deposed that they detected ligature mark on neck of the deceased and the body had no other wound. Regarding mark of ligature on neck, dissection they mentioned that „knot‟ was there on the left side of the ligature mark which was transversely placed over the neck and more than prominent over the front than back ligature and breadth of the marks were 1 and ½ inch. They further observed that regarding cranium and spinal canal against the Page 6 of 25 column of brain and spinal cord they mentioned that „oedematous‟ (presence of fluid) and congested. Proceeding further, regarding their observation in the post-mortem examination over the body of the deceased, PW-5 stated that "regarding thorax against the column of pleurae we mentioned that it was congested and there was presence of petechial hemorrhage. Regarding Larynx and Trachea we mentioned similar things. Petechial means presence of small drop of blood. In the column of right and left lung we also mentioned presence of pretechial hemorrhage and in pericardium we also mentioned presence of petechial and hemorrhage. In the column of heart we mentioned that it was congested and there was presence patechial hemorrhage. The patechial hemorrhage is a suggestive of severe congestion. Sever congestion was due to air obstruction". PW-5, had confirmed the remarks of the post-mortem doctors mentioned in the opinion column wherein they mentioned that the findings on the case of death would be awaited till the viscera report is available. The time of death of the deceased was 18-24 hours from the time of post-mortem. PW- 5 further deposed that on 28.07.2016, he being one of the Board Members issued a certificate addressed to the Officer-in-Charge of Dharmanagar PS mentioning that the nature of death of the deceased Mamata Malakar was homicidal in nature based on 3 points, which are as (i) ligature around neck was transversely placed (ii) there was pulmonary congestion and (iii) the hyoid bone was not fractured. All the 3 points mentioned above made them to pass their final opinion in favour of the cause of the death of deceased Mamata Malakar as due to homicidal mechanical obstruction. The report was accepted as Exhibit-5. Signature of PW-5 was identified as Exhibit 5/4. PW-5 had clarified that pulmonary congestion means that both the lung and its covering known as pleurae were congested and that was reflected in their findings mentioned in respect of thorax against column number 2,4 and 5. The witness further clarified that if hyoid bone was Page 7 of 25 found fractured it would be reflected in page no. 3 against muscle bone and joints in respect of column number 1 regarding injury. Being confronted with cross-examination, PW-5 stated that the ligature marks could be possible both in hanging as well as in strangulation case. He further stated that when a person would try to kill another then the victim would always try to escape. PW-5 further stated in cross-examination that when two or more persons would try to kill one person by strangulation, there might be a case of transverse ligature mark. The victim might also moved her legs to survive. He further stated that if a person was killed by means of any ligature or strangulation in that case after death of the person, the feed of the deceased might be placed towards front side. In cross examination, PW-5, further stated that on the basis of the SFSL report when they were satisfied that there was no poison in the viscera they were definite that it was a case of homicidal death. PW-5 denied that their opinion was not based on medical science.
(vi) PW-6, Apratim Mohan Debbarma, was the Medical Officer and was one of the members of Medical Board constituted for post-mortem examination over the body of the deceased. PW-6, entirely narrated the same facts, as deposed by PW-5 in his chief-examination as well as in cross-examination.
(vii) PW-7, Smt. Mira Malakar, happened to be the mother of the deceased. She deposed the same facts, as deposed by PW-1. In her cross- examination, she denied that her daughter was not killed by the appellants.
(viii) PW-8, Sri Krishna Malakar, one of the brothers of the deceased deposed that he found the entire house of the appellants crowded when he went to that house. PW-8, found all the other inmates of the house except the father-in-law of his deceased sister. He also put his signature as witness to the inquest report. PW-8 further deposed that police brought the dead body at the hospital for post-mortem and when the post-mortem was going Page 8 of 25 on he was not allowed to see the dead body. He further deposed that the Medical Officer was outside the morgue and the post-mortem was conducted by sweeper. In cross-examination, he denied the suggestions put forth by the defence that his deceased sister was too much sentimental.
(ix) PW-9, Ranu Malakar, was the seizure witness of one Micromax mobile with two seam cards which was seized infront of her.
(x) PW-10, Monoranjan Malakar was turned hostile. (xi) PW-11, Dr. Sandipak Roy, the third member of Medical Board
who conducted the post-mortem examination in his evidence, deposed the same facts and supported the report, he prepared alongwith other doctors, Dr. Asis Kumar Sen (PW-5) and Dr. Apratim Mohan Debbarma (PW-6). In reply to a specific question, PW-11 had denied that the dissection was done by a dome or sweeper and on the basis of report of sweeper they made their comments that it was a case of homicidal death. During cross- examination, PW-11, had confirmed that there was concluding evidence that the death of the deceased was homicidal.
(xii) PW-12, Dilip Deb, was a witness to the mobile phone.
(xiii) PW-13, Smt. Bandana Choudhury, being the woman SI of police at Dharmanagar women police station deposed that after receipt of the information, she rushed to the spot, prepared the inquest report, examined the witnessed of inquest and also recorded their statement under section 161 Cr.P.C. and submitted the same to the Officer-in-Charge of Dharmanagar PS. The body of the victim was sent for post-mortem. She identified the seized articles under inquest report.
(xiv) PW-14, Sri Nikhil Chandra Das, was the witness to the seizure of the wearing apparels of the deceased (Exhibit 3/3 and MO 2 and 3).
(xv) PW-15, Pinku Shil, was tendered by the prosecution. (xvi) PW-16, Rahul Malakar, was one of the brothers of the deceased. He rushed to the spot and found his sister hanging.
Page 9 of 25(xvii) PW-17, Sri Bijoy Sen, was the Officer-in-Charge of the police station who endorsed the case for investigation.
(xviii) PW-18, Sri Kamalendu Dhar, was endorsed to undertake investigation. He visited the place of occurrence, prepared handsketch map as well as the index thereof. He seized the mobile and other articles through PW-13 and arrested the accused persons. Finally, he submitted the charge-sheet.
(a)
10. We have given our thoughtful consideration to the evidences and materials on record, as adduced by the prosecution to substantiate the charges levelled against the appellants.
11. At the very outset, while dealing with the statement and forceful submission of learned senior counsel appearing on behalf of the appellants that the doctors did not conduct the post-mortem and the sweepers had conducted the post-mortem, we are constrained to observe that, according to us, it was an isolated statement with minor discrepancy, which was duly denied by all the three doctors of the constituted Medical Board, who firmly deposed that they together conducted the post-mortem over the body of the deceased.
12. It is settled law that in a criminal trial, minor discrepancy should be avoided to render justice to the victim. Accordingly, we repel the submission of the learned senior counsel that in the instant case doctors did not conduct the post-mortem.
13. Next, we have minutely scrutinized the evidences let in by the related witnesses of the deceased as well as the doctors. The main contention of the related witnesses of the deceased is that she was subjected to assault on many occasions and the appellant no. 1 i.e. husband of the deceased, used to maintain an illicit relation with another girl with whom he used to converse at night during bed time, even infront of his deceased wife. According to the related witnesses, the deceased was suffering harassment from such activities Page 10 of 25 of the appellant no. 1, but, they were not able to mention the name of the girl as the deceased never disclosed it to them.
14. After close scrutiny of the evidences of the related witnesses, we do not find any materials to implicate the mother-in-law, Smt. Sukriti Malakar (appellant no.2) and the brother-in-law, Sri Raju Malakar (appellant no.3) in connection with killing of deceased Mamata Malakar by strangulation.
15. The learned sessions Judge, according to us, only convicted the appellants no. 2 and 3 on the basis of a sole circumstance that when the related witnesses went to the house of the appellants, they found them in their house except the father-in-law of the deceased. Prosecution has failed to bring any witness to establish the circumstance that any of the neighbouring witnessess had seen the appellants no. 2 and 3 to inflict torture upon the deceased.
16. It is also not the case of the prosecution that appellant nos. 2 and 3 had been residing under one roof and were sharing the same room alongwith appellant no. 1 and the deceased. Question appears to our mind as to whether the deceased was first killed and thereafter hanged, and if that be so, who committed it.
17. To deal with this question as to whether it was a case of suicide or homicide, we are to bent upon the evidence of doctors i.e. PW-5, PW-6 and PW-11. This court is not in a position to suspect the findings and opinion of the doctors as they are the experts in this field of science. The doctors had found a „knot‟ on the left side of the ligature mark which was transversely placed over the neck and more than prominent over the front than back ligature and breadth of the marks were 1 and ½ inch. There was pulmonary congestion and hyoid bone was not fractured, which suggest homicidal death of the deceased. PW-11 has specifically explained and clarified that it is not the practice to pass their final opinion after post-mortem examination but, Page 11 of 25 they only submit report after receipt of viscera examination report, as prepared by the Toxicology Department.
18. Now, we are to answer who caused such death of the victim. As we have said earlier that prosecution had failed to justify the implication or the role played by the appellant nos. 2 and 3 in the death of the deceased. As such, only on the basis of the statement that they were found in the house where the deceased used to reside with the husband, appellant no.1, the conviction and sentence imposed upon them by learned Sessions Judge should not sustain.
19. Now, we are to deal as to the role played by the husband of the deceased i.e. appellant no.1. PW-5 and PW-6 deposed that they started the post-mortem examination at about 2.45 pm, and it was concluded at 3.45 pm on 05.11.2015. They further have stated that the time of death of the deceased was 18-24 hours from the time of post-mortem.
20. The present case, rests squarely on circumstantial evidence. It is the consistent view of the apex court as well as this court that inference of guilt can be justified only when all the incriminating evidences and circumstances are found to be incompatible with the innocence of the accused of the guilt or any other person. [Ref. Hukum Singh vs. State of Rajasthan, reported in 1977 (2) SCC 99; Iradu vs. State of Hyderabad, reported in AIR 1956 SC 316; 1956 Cr.L.J. 559; Ashok kumar Chatterjee vs. State of M.P., reported in 1989 Supple (1) SCC 560; AIR 1989 SC 189].
21. In addition, the circumstances from which the inference to the guilt of the accused is drawn must be proved beyond reasonable doubt, and have to be shown to be closely connected with the fact sought to be inferred from those circumstances. The apex court in Bhagat Ram vs. State of Punjab, reported in AIR 1954 SC 621, held that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances should Page 12 of 25 be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt.
22. In C.Chenga Reddy and others vs. State of Andhra Pradesh reported in 1996 (10) SCC 193, the apex court had observed thus:- [scc pp. 206-07, para 21] "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence".
23. Again, in Padala Veera Reddy vs State Of Andhra Pradesh And Others reported in 1989 Suppl. (2) SCC 706, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following test [scc pp.710-ii, para 10]:
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence".
24. It would be apposite to refer the case of State of Uttar Pradesh vs. Ashok kumar Srivastava reported in 1992 (2) SCC 86; 1192 Cr.L.J. 1104, wherein the apex court held that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the Page 13 of 25 cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
25. In an admirable book Wills' Circumstantial Evidence (Chapter VI), Sir Alfred Wills lays down the following rules specially to be observed in a case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and in capable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
26. Our Supreme Court as far back as in 1952 settled the issue that a conviction can solely be based on circumstantial evidence, but, it should be tested on touchstone of law relating to circumstantial evidence. In Hanumant Govind Nargundkar vs. State of Madhya Pradesh, reported in AIR 1952 SC 343; 1953 Cr.L.J. 129, the apex court held that [pp. 345-46, para 10]:-
"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".
27. Here it will be profitable to refer the later celebrated decision of the apex court in Sharad Birdhichand Sarda vs. State of Maharastra, reported in 1984(4) SCC 116; AIR 1984 SC 1622. While dealing with circumstantial Page 14 of 25 evidence, it has been held that onus was on the prosecution to prove that the chain is complete, and in order to prove the guilt of an accused of committing offences, following conditions must be fulfilled:- [scc.p. 185, para 153] "153. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
...the circumstances concerned „must or should‟ and not „may be‟ established......
* * * * (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 compete 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."
28. To justify the conviction of the accused-appellant and to establish the motive behind the cause of killing his wife, the prosecution has tried to project and relied upon the following circumstances:
(i) Since two years before the death of the deceased, the relationship between the deceased and her husband was strange. One day, the mother of the deceased (PW-7) went to her daughter's house when she found that her son-in-law i.e. appellant no.1 had returned to his house at 12 hours at night, which caused an altercation between her daughter and the appellant no.1, who tried to kill her by strangulation. She interfered and rescued her deceased daughter. The appellant no. 1 used to torture her daughter and the appellants no. 2 and 3 used to instigate the appellant no. 1;
(ii) The deceased on some occasions informed her parents and brothers i.e. the related witnesses, who adduced evidence in this case, that the appellant no. 1 had an illicit relation with another female, and on her protest, she was subjected to torture by her husband, appellant no. 1 herein;
(iii) On being informed over phone when the related prosecution witnesses had rushed to the house of the appellants, they found the appellants therein, but, did not find the father-in-law of the deceased as he was on night-duty, which led Page 15 of 25 their apprehension that the appellants had first murdered the deceased and then hanged her; and lastly
(iv) The opinion of the doctors in their certificates, who on the basis of three following factors came to a conclusion that the cause of death was due to homicidal mechanical obstruction- 1. The ligature around the neck is transversely placed; (2) pulmonary congestion, and (3) the hyoid bone was not fractured.
29. Dealing with the first circumstance (i), we find, the incidents, if at all we believe at the first blush, then also, according to our conscious consideration, those were the incidents of quarrels of trivial nature that took place between the husband and wife, can at the highest be said to arise out of ordinary wear and tear of marriage. Those were not the quarrels of such nature wherefrom it will not be prudent for us to arrive at a finding that those quarrels were of such grave and cruel enough to motivate the husband, the appellant no. 1 herein, to kill his wife.
PW-7, in her examination-in-chief has stated that her deceased daughter used to make inquiry from her as to whether the appellant no. 1 had visited the house of PW-7 or not even at the dead of night, but, PW-7 has not stated anything about what reply she used to give to her deceased daughter.
When her attention was drawn to her statements in examination-in- chief that two months prior to her death during her visit at night, the appellant no. 1 out of an altercation with her daughter had tried to kill her by strangulation, she has stated in cross-examination that she neither reported the matter to any other persons nor she lodged any complaint about the said incidents, which appears to be unnatural to normal human conduct.
Again, PW-7, in her cross-examination has stated that at the time of marriage they were made to understand that the appellant no. 1 had been running the business of book library, but, after marriage they found that he had no such business, and found that he used to work as day labour.
Page 16 of 25According to us, this statement may upset her deceased daughter, which cannot be related to the motive of the appellant no. 1 to kill his wife.
In view of this, in our opinion, the incidents of torture, as referred to here-in-above, are far from establishing foundational facts constituting motive of the appellants, particularly, appellant no. 1, to kill his wife.
From the deposition of PW-7, it transpires that the deceased-wife of appellant no.1, had last visited her paternal house 7 days prior to her death, and on that date itself, the appellant no. 1 had taken her back at night. Neither she nor any of her sons or daughters including her husband i.e. father of the deceased, who adduced their evidence have stated that during her said visit, she made any complaint to them against the appellants, particularly, against appellant no. 1. One important statement made by PW-7 in her cross- examination, according to us, is very relevant, that the deceased and the appellant no. 1 had lived peacefully for first two years of their marriage and even the appellant no. 1 used to take her back to her matrimonial house whenever she visited her house.
If we link this statement with the statement made during her chief- examination, which we have stated above that the deceased visited her paternal house 7 (seven) days prior to date of death and the appellant no.1 brought her back at night, then, we find that as usual the appellant no. 1 went to the house of PW-7 to bring his deceased wife at night and brought her back to the house of the appellant no.1. If we try to analyze the statement of PW-7, then, we do not find any behavioral change in the usual habits or mind-set of the appellant no. 1. Moreso, it suggests that the relation between the husband- appellant no.1 and the deceased was cordial. Furthermore, the prosecution in this case has failed to adduce any neighboring witnesses to establish the fact that the deceased was subjected to torture by the appellants and there was strange relation between the appellant no. 1 and the deceased. In this situation, Page 17 of 25 it will not be safe for us to rely on the uncorroborated evidence of such related witnesses.
It is settled proposition of law that in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances, though, it matters little when the prosecution case is entirely based upon direct evidence witnessing the commission of any crime. In a case of the present nature, where there is no direct evidence, duty casts upon the prosecution to establish certain strong circumstances from which it can reasonably be concluded that the appellants, particularly, appellant no. 1 had a strong motive to get rid of his wife.
[Emphasis supplied] It will be apposite to make a reference to the case of Pannayar vs. State of Tamil Nadu, reported in (2009) 9 SCC 152 and Babu vs. State of Kerala, reported in (2010) 9 SCC 189, wherein, the apex court has held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
On analysis of the above evidences relating to the „first circumstance‟, we find it very difficult to link the statement of the prosecution witnesses, suggesting the motive of the appellants, particularly, appellant no. 1, to commit murder of his wife. The evidences of the prosecution witnesses relating to torture upon the deceased are found to be evasive and unreliable to constitute motive of the appellants to commit murder of the deceased.
30. Now, we may come to second circumstance-(ii), regarding illicit relationship between the appellant no.1 and another female.
It comes to light that the closed relatives of the deceased have deposed that the deceased Mamata Malakar reported to them that the appellant no. 1 used to maintain extra-marital affairs with another female.
In our opinion, the prosecution has miserably failed to establish this circumstance. The prosecution witnesses have stated in their deposition that Page 18 of 25 the deceased did not disclose the name of the girl. The prosecution has also failed to bring any neighboring witness to support this statement of the related witnesses of the deceased.
PW-10, though, resiled from his statement and declared hostile, for deviating from his previous statements recorded under Section 161 Cr.P.C. that the appellant no. 1 used to maintain a relation with one married woman, namely, „X‟ (name withheld), daughter of „Y‟, but, question is, had he been made such statement to the police during investigation, then, what prevented the investigating officer to inquire into the matter to substantiate this fact. Even the prosecution has failed to examine any witness from the locality of the appellant no. 1 involving him with said „X‟. This court also has taken note of the statement of PW-8 admitting that his sister "used to suspect illicit relationship of her husband with another lady".
In addition, if we now closely analyse these circumstances as enumerated here-in-above, we find there was a greater motive of the deceased to commit suicide than to the appellants to commit murder.
The failure of the prosecution to establish this circumstance (ii) has forced us to suspect the prosecution case regarding illicit relationship between the appellant no. 1 and „X‟.
31. To discuss the third circumstance-(iii), that the appellants were implicated as the close relatives of the deceased had found the appellants in the house on their visit to the house after death of the deceased, according to us, is deficient to link the appellants with the cause of death of the deceased on the basis of „last seen together theory'. The prosecution has miserably failed to substantiate the fact that any of the appellants, particularly, appellant no.1 had slept under the same roof in that night. The prosecution did not lead any evidence to draw inference that the appellant no. 1 had stayed with his wife in that night.
Page 19 of 2532. Neither Section 103 nor Section 106 of the Evidence Act, absolve the prosecution from its duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. To sustain a conviction, prosecution has to lead evidences making out a prima facie case for drawing a presumption that both the husband and wife resided in a room under the same roof on that fateful night, and only thereafter onus will shift upon the accused to come up with a possible and plausible explanation that he had no special knowledge about the circumstances in which his wife might have died.
In the case of Subramaniam vs. State of Tamil Nadu, reported in (2009) 14 SCC 415, the apex court to discuss the position of law in this regard had observed that:- [scc.p. 426, para 23] "23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor".
In Gargi vs. State of Haryana, reported in (2019) 9 SCC 738, the apex court had observed thus- [scc.p. 775, para 33] "33.1. Insofar as the „last seen theory‟ is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden".
33. Again, question may arise that, in the present case, the appellants have failed to give any explanation in their examination under Section 313 Cr.P.C., in regard to the circumstances under which the deceased might have died.
Page 20 of 25We have taken note of the situation and has tried to relate the same with the proposition of law.
Very recently, the Supreme Court in its judgment passed in Shivaji Chintappa Patil vs. State of Maharastra, reported in (2021) 5 SCC 626, had observed that:- [ scc. P. 634, para 25] "25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)".
In the case of State of Rajasthan vs. Kashiram, reported in (2006) 12 SCC 254, the apex court has held that non-explanation of any fact under Section 313 Cr.P.C. will act as an additional link to fortify the findings that the prosecution had established the chain of events unquestionably leading to the guilt of the accused and not as a link to complete the chain.
34. Having given our bird‟s eye view to the circumstantial evidences, as let in by the prosecution, and strongly relied upon by learned PP to pursue this court to sustain the conviction, we are unable to link the circumstances in the chain of events to make an irresistible conclusion that it was the appellants who had killed Mamata Malakar, wife of appellant no.1.
35. Finally, we may proceed to examine the medical and scientific evidences, as surfaced from the statements made by the medical and scientific experts i.e. the fourth and last circumstance-(iv).
PW-5, PW-6 and PW-11 together had conducted the post-mortem over the deadbody of the deceased. They deposed in similar and identical terms. They found ligature mark which was transversely placed over the neck and more than prominent over the front than back. The ligature is 1½ inch in breadth. They did not find any other injuries in any other parts of the body. On the basis of the above observation, the post-mortem doctors issued Page 21 of 25 certificate based on three points, 1. The ligature around the neck is transversely placed; (2) pulmonary congestion, and (3) the hyoid bone was not fractured.
Before we examine the merits of the opinion and foundations thereof, we have taken note of Modi's Medical Jurisprudence and Toxicology, 24th Edition, where the learned author has drawn up the difference between hanging and strangulation in a tabular form. The relevant factors are reproduced here-in-below:-
Hanging Strangulation
1. Mostly suicidal 1. Mostly homicidal
6. Ligature mark- Oblique, non- 6. Ligature mark- Horizontal or
continuous placed high up in the neck transverse continuous, round the
between the chin and the larynx, the neck, low down in the neck below
base of the groove or furrow being the thyroid, the base of the groove
hard, yellow and parchment-like or furrow being soft and reddish
10. Carotid arteries, internal coats 10. Carotid arteries, internal coats
ruptured in violent cases of a long ordinarily ruptured
drop
11. Fracture of the larynx and trachea- 11. Fracture of the larynx trachea and
Very rare and may be found that too hyoid bone
in judicial hanging
13. Scratches, abrasions and bruises on 13. Scratches, abrasions fingernail
the face, neck and other parts of the marks and bruishes on the face,
body- Usually not present neck and other parts of the body-
Usually present
From the above opinion of the learned author as well as the observations of the apex court in Ponnuswamy vs. State of Tamil Nadu, reported in (2008) 5 SCC 587, we may arrive at a finding that whether the hyoid bone is fractured or unfractured, it does not lead to a conclusive proof of formation of opinion that since the autopsy surgeons do not find the fractured hyoid bone, it is a case of strangulation. Moreso, from the opinion of the learned author passed in 24th Edition, we are of the considered opinion that though the hyoid bone may be found to be fractured in some of the cases of strangulation, but, such fracture of hyoid bone will be very rare in case of strangulation. So, we cannot conclusively rely upon the opinion of the autopsy doctors that since Page 22 of 25 they found the hyoid bone not fractured, the deceased died out of strangulation.
36. Now, let us examine the opinion of the doctors mentioned in the 1 st point that they found "one ligature mark was transversely placed".
We have perused the post-mortem report (exhibit-5). Describing external appearance at column no. (iv), the post-mortem doctors had observed that the ligature mark is transversely placed over the neck and more than prominent over the front than back. If we look at column no. (vi) of the table of Modi's Medical Jurisprudence and Toxicology, as stated here-in-above, we find that in case of strangulation, the ligature mark will be transverse continuous around the neck, low down in the neck below the thyroid.
So, from the said opinion of the learned author, the ligature mark in case of strangulation should be lower down the neck below the thyroid, but, in the instant case, we find the doctors have observed that the ligature mark is found over the neck i.e. high up the neck, which is generally found in case of suicide.
In the 2nd and 3rd column, which deal with wounds-position and bruises position, the doctors found no such wound or injury in any parts of the body.
To form a definite opinion about the cause of death on the basis of the position of ligature mark, according to us, will not be safe and wise for the courts because it depends upon various factors involving so many probabilities and improbabilities. The opinion of the post-mortem doctors being the expert in this field must be demonstrative and should be supported by convincing reasons. The opinion should be so clear and decisive so that it will be impossible for the court to form two different views. In the case in hand, there are enough rooms to form different views regarding the position of ligature mark. It is settled proposition of law that the view favouring the accused will be accepted by the court.
Page 23 of 2537. Interestingly, the prosecution has not produced any forensic expert. PW-18, the investigating officer, has stated in his deposition that he sent the wearing apparels of the deceased to State Forensic and Scientific Laboratory. He received the SFSL report on 30.04.2016, which was placed before the post-mortem doctors to prepare the final report. Interestingly, we do not find any such report brought on record or proved by the prosecution. The scientific examiner has not been examined. Records do not speak that the prosecution has made any attempt to call the scientific expert in the witness box during trial.
38. One more significant aspect which was introduced in the post-mortem report as well as in the deposition of the doctors is that the doctors have stated in regard to petechial haemorrhages, which were found internally in the body of the deceased, but, have not stated anything in regard to petechial effects on the faces of the deceased. Generally, in a case of death out of strangulation by ligature, petechiae are mostly found around the eyes and even on the face, but, no such marks of petechiae is found on the face and around the eyes of the deceased, which also goes against the prosecution case that the deceased was killed first, and thereafter, hanged. Again, it is the case of the prosecution that the deceased died out of asphyxia i.e. hypoxia with some mechanical interference with the process of breathing.
39. Taylor in his book "Principles and Practice of Medical Jurisprudence"
13th Edition at page 285 dealing with the issue has observed that to substantiate a case of hypoxia associated with some mechanical interference with the process of breathing, the following features must be sought for:-
"1. Evidence on the body of some mechanical interference with the process of breathing, and
2. A local intensification of hypoxial features indicating that the hypoxia is not general.
Thus, in some deaths with the features of hypoxia there may be local marks of injury, such as pressure marks on the face and neck, foreign material in the air passages. These give sound evidence as to the cause of the hypoxic process."Page 24 of 25
40. From the above principles and the opinion of the learned authors, as extracted here-in-above, there is every possibility of the presence of scratches, abrasions, fingernails, marks and bruises on the neck, face and other parts of the body in a case of strangulation, but, such scratches or abrasions etc. are not usually seen in a case of suicide.
41. Another interesting feature, we find that, ligature marks is 1½ inch in breadth. The investigating officer during investigation has seized one saree which was used in the commission of alleged crime, but, it is not clear that whether such ligature is possible by the seized saree which was found high up the neck of the deceased.
42. On overall analysis of the medical evidences placed before us, we can arrive at a finding that the deceased died out of asphyxia, but, whether the deceased died out of manual strangulation or ligature strangulation is in doubt. In furtherance thereof, the medical evidence is usually opinion evidence, as was held by the Apex Court in the case of Duraipandi Thevar And Ors. vs State Of Tamil Nadu reported in AIR 1973 SC 659. In absence of any other corroborative evidence, it will be unsafe for us to sustain the conviction of the appellants, even if we lend our support to the medical evidences.
43. On cumulative reading of the evidences of the related witnesses, the circumstances, which the prosecution has tried to project in support of strange relationship between the appellant no. 1 and the deceased, are not found to be convincing and inspiring to us to come to a definite conclusion that the appellants used to torture upon the deceased, and the appellant no. 1 was maintaining an illicit relation with another female. Another important aspect that also strikes our mind is that the deceased had never expressed imminent danger to her life at the hands of the appellants, particularly, appellant no. 1. On the other hand, there are evidences from which it is surfaced that the deceased used to suspect the appellant no. 1 that might have some emotional implication to end her life. The medical evidence cannot be said to be of a clinching nature regarding the cause of death of the deceased.
Page 25 of 2544. In our opinion, the learned trial Judge had overlooked the major flaws and shortcomings in the prosecution case. It went unnoticed to the learned trial Court that the prosecution has failed to come out with any sorts of explanations as to why the SFSL report has not been brought on record and the expert has not been examined. According to the doctors (PW-5, PW-6 and PW-11) they have formed the opinion on the basis of the SFSL report. As such, the report of the SFSL expert forms the foundation in favour of the opinion of the doctors that the deceased faced homicidal death due to mechanical obstruction.
45. Hence, we are unable to sustain the conviction of the appellants, as declared by the learned Sessions Judge, North Tripura, Dharmanagar; the appellants are entitled to the benefit of doubt. Consequently, the present appeal stands allowed. The judgment and order dated 09.07.2019 passed in case No. S.T. (Type-1) 06 of 2017, convicting the appellants for the offence punishable under Section 302 and 201 IPC stand set aside. The appellants are extended the benefit of doubt, and accordingly, they are acquitted.
They shall be released forthwith if not wanted in connection with any other case.
Issue the release warrant forthwith.
Send down the LCRs.
(ARINDAM LODH,) J (AKIL KURESHI), CJ Saikat