Calcutta High Court (Appellete Side)
Mukul Maitra vs State Of West Bengal & Ors on 29 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 243 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Rajarshi Bharadwaj C.R.A. 167 of 1997 Mukul Maitra
-Vs-
State of West Bengal & Ors.
For the Appellant : Ms. Trina Mitra .. Advocate
For the State : Mr. Saswata Gopal Mukherjee .. Ld. Public Prosecutor
Mr. Parthapratim Das .. Advocate
Heard on : 29.01.2018
Judgement on: 29.01.2018
Joymalya Bagchi, J. :-
The appeal is directed against the judgement and order dated 7th/9th May, 1997 passed by the learned Additional Sessions Judge, 11th Court, Alipore, South 24-Parganas in Sessions Trial No. 1 (12) 96 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.4,000/-, in default, to suffer further rigorous imprisonment for six months.2
The appellant was called upon to answer the charges that on 2nd September, 1993 around 1:00 P.M. he had committed the murder of his wife, Ira Maitra by strangulation at Boral, Paschim Nischintapur, Majherpara, P.S. Sonarpur, Dist: 24-Parganas (South) and after commission of murder had caused disappearance of evidence in order to shield himself.
The genesis of the case can be traced to a written complaint lodged by the father of the victim namely, Ramanath Bhowmik (PW1) who alleged that the victim, Ira was married to the appellant. For the last 2/3 years the appellant tortured the victim with the ulterior motive of compelling her to sell their house at Boral which stood in the name of his daughter so that the said money can be misappropriated by the appellant. The victim refused to do so and was subjected to torture. It was further alleged that the daughter-in- law of the de-facto complainant namely, Lata Bhowmik (PW4) informed him that around 12 noon the appellant entered his house before the incident. On the basis of the aforesaid written complaint, Sonarpur Police Station Case No. 318 dated 2nd September, 1993 under Section 302 IPC was lodged against the appellant. In conclusion of investigation, charge-sheet was filed against the appellant. The case being a sessions triable one was committed to the Court of Sessions and the case was transferred to the Court of the Additional Sessions Judge, 11th Court, Alipore, South 24-Parganas for trial and disposal.
Charges were framed against the appellant under Sections 302/201 IPC. The appellant pleaded not guilty and claimed to be tried. It was his specific defence that he had gone out to work and upon returning home he found his wife dead with injuries on her neck. He immediately called out 'boudi boudi' and PW2 & 4, the sisters-in-law of the victim and others came to the place of occurrence. They sprinkled water but the victim remained 3 senseless. He asked Lata Bhowmik (PW4) to inform his father-in-law (PW1) and Lata went over to his father-in-law's house. He left for his elder sister's house at P-38, Gariahat Road (South), Kolkata - 31. He also informed the employees of the Co-operative Bank, Boral Branch which is near his house to inform Sonapur Police Station that his wife had died. He returned home along with his relations around 5-5:30 P.M. One and half-hour later police came and held inquest over the dead body. In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents. The appellant however, sought to probabilise his case through effective cross-examination. In conclusion of trial, the trial Judge by the impugned judgement and order dated 7th/9th May, 1997 convicted and sentenced the appellant, as aforesaid.
Ms. Trina Mitra, learned advocate appearing for the appellant argued that there is no direct evidence showing that the appellant had murdered his wife. On the other hand, the plea of the appellant that he came to the house and found his wife senseless with grave injuries on her neck and thereafter, had called his in-laws to inform them of the case is probabilised in the facts and circumstances of the case. PW11, Autopsy Surgeon, in cross-examination, admitted that such injury is likely to be caused by more than one person in probabilising the prosecution case. She further argued that the extra-judicial confession is an afterthought and does not find place either in the General Diary lodged on the date of the incident by PW5 or in the FIR lodged by PW1 more than a month after the incident. Accordingly, she prayed for acquittal of the appellant.
On the other hand, Mr. Saswata Gopal Mukherjee, learned Public Prosecutor along with Mr. Parthapratim Das, learned advocate, appearing for the State, submitted that the evidence on record shows that the victim suffered homicidal death at her matrimonial 4 home. Motive of the crime has been established and the appellant had not been able to probabilise his plea of alibi in the facts of the case. Extra-judicial confession made to his in-laws is corroborated by the independent witness (PW6) and therefore, ought not to be discarded. Hence, the appeal is liable to be dismissed.
I have considered the rival submissions in the light of the evidence on record. PW1 is the father of the victim and the first informant in the instant case. He deposed that the victim was married to the appellant. Initially, the couple resided in the Ballygunge flat. Thereafter they started residing in Boral, Paschim Nischintapur, Majherpara, P.S. Sonarpur. The couple had two sons aged about 12 and 7-8 years. Rina, his daughter-in-law (PW2) used to stay in a neighbouring house. Lata, another daughter- in-law (PW4) had gone to the house of Rina on 2nd September, 1993. On that day when the victim was murdered around 12:30 P.M. Lata came to his house and whispered something to his wife. Thereafter they went to Boral whereupon Lata told that the accused had murdered Ira. Dead body of Ira was lying on the floor in the thakurghar of the said house. He found a ligature mark on the neck and throat which was due to throttling. He was present when police came to the Boral house. He signed on the inquest report (Exhibit-1). He lodged FIR (Exhibit-2). The appellant used to torture his daughter in a drunken condition. He was provided a job on compassionate ground in an engineering firm of his elder brother but due to his rude behaviour he lost his job. He wanted to dispose of the Boral house which was standing in the name of the victim but she opposed.
In cross-examination, he stated that the elder brother of the appellant had a big company. His other brothers are either employed or abroad. He did not mention the maltreatment of his daughter in the FIR.
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PW2, Rina Bhowmik is the sister-in-law of the victim. She deposed that she resided at Boral. Presently she resides at Garia. The house of the victim was near her house. On 2nd September, 1993 around noon the appellant called her and stated that he had murdered the victim. They rushed and found the dead body of the victim in the house of the appellant. He confessed his guilt by holding her leg and exclaiming 'ami e ki korlam'. Lata, her sister-in-law was also present in her house. Local people came there. She found the pupils of the victim were dilated and there was a ligature mark around her neck. Police came to the place of occurrence. She was present when police took away the body. Relationship between the couple was not good. The appellant used to torture the victim in a drunken condition. The victim never disclosed her woeful stories to others. On the material day the appellant instead of going to office started quarrelling over disposal of Boral house. She was in the bathroom adjacent to their house and heard the victim complaining about the appellant.
In cross-examination she deposed that she was examined 15-20 days after the incident. She had stated to the police that they did not have interaction with the family of the victim. She denied that she did not state to the Investigating Officer that the accused used to torture the victim in an intoxicated condition or that the appellant admitted his guilt before her.
PW3 is the mother of the victim. She has corroborated the evidence of her husband (PW1).
PW4, Lata Bhowmik is the other sister-in-law of the victim. She stated that on 2nd September, 1993 at noon she had been to the house of Rina (PW2) which is behind the house of the victim intervened by 7-8 cubits. While she was travelling down the pathway to 6 the east of the house of the victim she heard quarrel between the appellant and the victim. Rina told her that quarrel was continuing for long. Soon thereafter they heard cries of the appellant shouting 'boudi boudi' and when they went there the appellant confessed that he had murdered the victim. They found that the body of the victim was lying in a room. Local people came to the spot. They called a doctor. She informed the inmates of her father-in- law's house. Her parents-in-law rushed to the place of occurrence. She did not find the children as they had gone to school. She was cross-examined in respect of her previous statement to the police.
PW5, Baidya Nath Bhowmik is the brother of the victim. He deposed that on 2nd September, 1993 at 6.00 P.M., he heard from his younger brother Surya Nath that victim- Ira had been murdered. He rushed to the place of occurrence. He found the dead body of Ira lying in the bedroom with injuries. There was strangulation mark on her neck and throat. He stated that the appellant exclaimed 'ami e ki korlam' to him. One local boy informed the police. At 8.00 P.M. police arrived. Police asked him to lodge complaint but he expressed his helplessness. After that he made a statement. He signed on the inquest report (Exhibit-1/1).
In cross-examination, he stated that he resides with his family at Brahmapur house. Surya Nath lived at his father's house at Garia.
PW6, Shankar Mondal is a neighbour of the appellant. He deposed that on 2nd September, 1993, appellant came out of his house and shouted 'ami e ki korlam'. He went to the house and found the door open. He entered the house and found Ira was lying in the room. Thereafter, the appellant was found missing and re-appeared at around 3.30 P.M. in a taxi.
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In cross-examination, he denied that he had stated to the Investigating Officer that at 12.50 P.M. he had seen Ira on the rooftop drying her clothes.
PW7, Tapas Mondal is another neighbour who was declared hostile. He stated that the victim died on 2nd September, 1993 and the appellant had admitted his guilt on that day.
PW11, Dr. P.B. Das has held autopsy on the body of the victim. On 3rd September, 1993 at 1.00 P.M. he found the following injuries :-
1) Abrasion over chin measuring 1½" x 1"placed side by side.
2) 4 (four) small inverted abrasion over left mandibular region marking ¼" x 1/6" each covering on area of 2" x 1½".
3) Abrasion over nasal region measuring ½" x ½".
4) Abrasion over left elbow measuring 1"x 1".
5) Abrasion over left scapula region placed side by side 2"x 1".
6) Abrasion over right heel 1½" x 1" after dissection.
7) Abrasion over right shoulder back side placed above down. 2"x 1½".
8) Abrasion over left illiac rest and arteriole placed obliquely 2½" x ½".
9) After dissection bruises over chin 2"x 2".
10) Bruises over left side sterno cavicullar region 1½" x 1".
11) Bruises over sternum body 2" x 2" middle position.
12) Bruises over occipital region 2"x 2".
13) Bruises over rt. Temporal region 1½" x 1½".
14) One oblique conditionally (sic) ligament mark placed over neck side by side of the level thyroid cartilage extending on back side measuring 8" x ½" having no mark of ligature wall on the back of neck about 5".
Ligature mark is not high (sic) up over back.
All the abrasions are non-sealed on bruises are of red in colour and all the injuries show evidence of vital reaction. No other matter of injuries are found even after careful examination and dissection.
Brain patechocal (sic) haemorrhaging spots in white matter of bone (sic) lanynx and trachoea Hyoid bone and thyroid cartilage found intact.
Lungs on both sides patechocal haemorrhaging spot in all lobes of lung. 8 He opined that the death was by strangulation as stated above and ante mortem homicidal in nature. He proved the post mortem report (Exhibit-3).
In cross-examination, he stated that there was gap of five inches on the back of the neck where ligature mark was detected. Ligature mark was incomplete. He was unable to state whether the victim sustained abrasion injuries while she was in a standing or sitting or in lying position. The anterior of the neck was compressed either by both sides or from the backside of the neck. Whether from backside or from both sides, two ends of ligature had to be compressed forcibly from both ends. He deposed that the ligature and other injuries as detected were likely to be caused by more than one person or by a very strong and stout person. The victim took her last meal 4/5 hours before molecular death. The process of passing of rigor mortis did not start at the time when he examined the dead body at 1.30 P.M. on 3rd September, 1993. Decomposition starts in normal case within 18 to 36 hours from molecular death and it varies upto 36 hours. He clarified that the presence of so many abrasions are likely to be noted due to restless position or stirring or rolling position of the body due to pangs of death.
PW12, Mizanur Rahaman was a Police Officer attached to Sonarpur Police Station. On 2nd September, 1993 he went to Boral, Paschim Nischindapur on the order of Officer- in-charge and performed inquest on the dead body of the victim. He proved the inquest report (Exhibit-1/1). He held inquest in the presence of four witnesses who signed in his presence.
In cross-examination, he stated that the inquest was performed at 9.35 P.M. Before that no work could be undertaken because of turmoil due to large assembly of people. He informed the Officer-in-charge over telephone and thereafter he performed inquest. He 9 took half an hour to complete inquest. He examined the people present during inquest but none of them could enlighten them as to the cause of death. At the time of inquest, accused was present in the crowd. He could not enlighten him as to the cause of death.
PW13, Pabitra Kumar Ghosh is the Investigating Officer in the instant case. He was posted as Officer-in-charge, Sonarpur Police Station on 2nd September, 1993. He took up the investigation of the case. He deposed that on 2nd September, 1993 U.D. Case No.88 was registered on the written information of Baidyanath Bhowmick, (PW4). He proved the complaint (Exhibit-4) On 9th October, 1993 complaint was received from PW1 and investigation commenced. He arrested the accused under Section 41 of the Code of Criminal Procedure read with Section 302 of the Indian Penal Code from the place of occurrence on 2nd September, 1993. He recorded statements of witnesses. He prepared sketch map (Exhibit-5). He collected post mortem report. He submitted charge sheet.
In cross-examination, he stated that between 2nd September, 1993 till 9th October, 1993 he tried to ascertain the cause of death of the victim but nobody could enlighten him. PW2 did not state to him that the accused stated 'boudi mithuke mere fellam'. Accused also did not exclaim to her that 'ami e ki korlam'. PW4 did not state to him that she heard quarrels between the appellant and the victim on the day of the incident over the issue of sale of Boral house. He did not take steps to refer the accused to the Judicial Magistrate for recording his confession under Section 164 of the Code of Criminal Procedure. On 2nd September, 1993 he interrogated the sons of the deceased but their statements were not recorded as they did not divulge anything.
From the aforesaid evidence it appears that the victim had suffered a homicidal death on 2nd September, 1993 in the afternoon at her matrimonial home. Prosecution has 10 relied on the extra judicial confession of the appellant to her in-laws namely, PW2, 4 & 5 and PW6 that he had killed the victim. These witnesses claimed that the appellant had shouted 'boudi boudi' soon after the incident and when PW2 and PW4 arrived at the spot he caught the leg of the PW2 and expressed remorse as to what he had done. No doubt, this is an incriminating circumstance if proved beyond reasonable doubt. However, I note that the aforesaid circumstance of the appellant admitting his guilt before his in-laws namely, PW2 & 4 and neighbour (PW6) does not find place in the general diary lodged by PW5, brother-in-law of the appellant with the police on the date of the incident. More so, such circumstance is also significantly absent in the First Information Report lodged by PW1 more than a month after the incident. It is also pertinent to note that Officer-in- charge, Sonarpur Police Station (PW13) had arrested the appellant on the date of the incident itself out of mere suspicion and not on the strength of the so called extra judicial confession. He had also not forwarded the appellant before the Magistrate for recording his judicial confession. These circumstances militate against the prosecution case that the appellant had immediately after the incident made an extra judicial confession to his in- laws and neighbour. Had it been so, this vital piece of evidence would have found place in the general diary, (Exhibit-4) lodged by PW5 on the self-same date and definitely in the FIR lodged by PW1 on 9th October, 1993. I am not unmindful of the fact that the FIR need not be an encyclopaedia of facts. It is undeniable that the extra judicial confession, if made by the appellant, was the most vital piece of incriminating material which naturally would have found place in FIR lodged by the father of the victim (PW1). Failure to do so does not appear to be an accidental slip or omission but probabilises the defence plea that the purported extra judicial confession coming from the mouths of the witnesses is an 11 afterthought. It is also pertinent to note that PW2 before whom the extra judicial confession was made stated such fact for the first time in Court. Evidence of PW5 & 6 with regard to the extra judicial confession must be taken with a pinch of salt as they arrived at the place of occurrence much later. Moreover, version of PW6 that the appellant shouted 'ami e ki korlam' is not corroborated by PW2 & 4. PW13, Investigating Officer has also not spoken about any extra judicial confession being made by the appellant either on the date of the occurrence or thereafter. Hence, I am constrained to hold that the prosecution has not been able to prove that the appellant made an extra judicial confession immediately after the incident.
In the absence of the aforesaid incriminating circumstance being proved beyond reasonable doubt, learned Public Prosecutor strongly relied on the circumstance that the appellant was present at the place of occurrence and was found quarrelling with his wife immediately prior to the incident. He relied on the evidence of the PW2 & 4 to support such contention. He also submitted that evidence has come on record that the appellant had lost his job and, therefore, his plea that he had gone out for work is highly improbable.
I have analysed the evidence of PW2 & 4 in this regard. Evidence of PW2 & 4 with regard to the issue of quarrel between the appellant and the victim on the day of the incident is stated for the first time in Court. Evidence of PW13 show that they did not state such fact to him during their interrogation. Hence, I consider it unsafe to rely on the embellished versions of PW2 & 4 to come to a conclusion that they had heard the appellant and the victim quarrelling immediately prior to the incident. It is also important to note that nobody had seen the appellant in the house prior to the date of the incident. On the other hand, the appellant had during his examination under Section 313 of the Code of 12 Criminal Procedure stated that upon returning from office at around 1.30 P.M., he found his wife lying prostrate in the room with injuries and had shouted 'boudi boudi' in order to call PW2 to the place of occurrence.
Learned Public Prosecutor sought to improbabilise such version of the appellant by referring to the evidence of PW1 that he had lost his job in his elder brother's office and, therefore, there was no question of his going out for work.
I am unable to accept the contention of the learned Public Prosecutor that the appellant was unemployed as he had lost his job in his brother's business. The appellant was the sole earning member of his family and it was most likely that he had gone out in search of work for his livelihood on the fateful day. The conduct of the appellant in immediately calling the sister-in-law of the victim (PW2) upon finding the latter lying in the room with bleeding injuries probabilises the defence version and militates against the prosecution case. It is nobody's case that the appellant surreptitiously ran away from the place of occurrence without informing the near and dear ones of the victim or his neighbours. His conduct is corroborated by the evidence of his in-laws namely PW2 & 4 and his neighbour PW6. On the other hand, it is the in-laws who sought to implicate him in the instant case by embellishing an allegation of extra judicial confession by the appellant which does not find mention either in the general diary (Exhibit-4) lodged on the date of the incident or even in the FIR (Exhibit-2) lodged more than a month later which for reasons as discussed above, I do not consider it prudent to rely on. The conduct of the appellant in immediately calling for help from his own in-laws when he found his wife with such fatal injuries at his home and thereafter requesting others to inform the police station before he went to meet his own relations at Ballygunge and soon thereafter returning to 13 the place of occurrence at the time of holding inquest persuade me to come to the conclusion that the version of the appellant that he had gone out for work and was not present at the house at the time of the incident as a probable and reasonable one.
On the other hand, the conduct of the prosecution witnesses in remaining silent with regard to the purported extra judicial confession on the date of occurrence and also in the FIR lodged more than a month thereafter wholly militates against the prosecution case of culpable conduct of the appellant soon after the incident in admitting his guilt or running away from the place of occurrence, as alleged.
For the aforesaid reasons, I am constrained to hold that the circumstances relied upon by the prosecution have not been proved beyond reasonable doubt and they do not form a complete chain unerringly pointing towards the guilt of the appellant. Hence, I am inclined to extend the benefit of doubt to the appellant and acquit him of the charges levelled against him.
The appeal is accordingly, allowed.
The appellant shall be discharged from his bail bonds after six months in terms of Section 437A of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) akd/as 14