Tripura High Court
Paritosh Nath@ Babu vs The State Of Tripura on 9 July, 2020
Equivalent citations: AIRONLINE 2020 TRI 341
Author: S.G.Chattopadhyay
Bench: S.Talapatra, S.G.Chattopadhyay
Page 1 of 58
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 06/2020
BEFORE
HON'BLE MR.JUSTICE S.TALAPATRA
HON'BLE MR.JUSTICE S.G.CHATTOPADHYAY
Paritosh Nath@ Babu,
Son of Sri Narayan Nath,
Village : East Hurua,
P.S : Dharmanagar,
District: North Tripura
Pin : 799251.
....................Appellant.
Versus
The State of Tripura
.................Respondent.
For the Appellant(s) : Mr. S.Kar Bhowmik, Advocate.
For the Respondent(s) : Mr. Ratan Datta, PP
Date of hearing : 09.06.2020
Date of Judgment and Order : 09.07.2020
Whether fit for reporting : Yes No
JUDGMENT
(Per S.G.Chattopadhyay, J) [1] This appeal by convict Paritosh Nath @ Babu, the appellant hereinafter, under Section 374(2) Cr.P.C. is directed against the judgment and order of conviction and sentence dated 27/06/2019 passed by the learned Sessions Judge, North Tripura Judicial district, Dharmanagar in case No. S.T.(T-1) 16 of 2018 whereby the appellant has been convicted for having committed offences punishable under Crl.A(J) 06/2020 Page 2 of 58 Sections 498A and 302 of the Indian Penal Code, in short, IPC, and sentenced to undergo Rigorous Imprisonment [RI] for three (03) years and fine of Rs.10,000/- with default stipulation under Section 498A, IPC and Rigorous Imprisonment [RI] for life and fine of Rs. 10,000/- with default stipulation under Section 302, IPC and it has been ordered that both the sentences shall run concurrently. [2] Sri Rohini Nath, father of Smt. Purnima Nath, the deceased hereinafter, lodged a written information to the officer in charge of Dharmanagar Police Station on 29.07.2017 disclosing that he got his daughter married to the appellant in the month of Falguna in 1423 B.S. (corresponding to the month of February/March in 2017) in accordance with the shastrik rites of Hindu marriage and since marriage, the appellant subjected his wife [the deceased] to torture to fulfill his dowry demand of rupees one lakh. The informant was made aware by his deceased daughter about the demand of her appellant husband and the cruelty meted out to her by the appellant due to non fulfillment of his demand. The informant then gave Rs.20,000/- to the appellant. It has been alleged that despite the payment of dowry, the appellant continued to torture his wife even after the deceased became pregnant. On 28.07.2017 the appellant severely assaulted the deceased and killed her by strangulation. Prior to that, also, he tried to kill his wife several times. On 29.07.2017 at around 11 Crl.A(J) 06/2020 Page 3 of 58 O'clock in the morning, vice chairman of the village panchayet of Ganganagar informed him about the death of his daughter. He rushed in and found his daughter lying dead on her bed in her matrimonial home. It has been alleged by him in his FIR that the appellant killed his daughter.
[3] Based on such information, Dharmanagar PS Case No.027 of 2017 under Sections 302 and 304(B), IPC was registered. Smt. Bandana Choudhury, woman sub- inspector of police [PW-20] carried out the preliminary investigation of the case and thereafter, the case was endorsed to Smt. Paramita Pandey, Deputy Superintendent of Police (Crime Against Women) for investigation pursuant to the order dated 30.07.2017 of the Superintendent of Police. Smt. Paramita Pandey carried out the whole investigation and at the conclusion of her investigation she filed charge sheet sending up the appellant to stand the trial for commission of offences punishable under Sections 498A and 302, IPC.
[4] After the case was committed to the Court of Sessions, the learned trial Judge framed the following charges of offence against the appellant:
"Firstly that from the month of Falguna, 1423 BS to 28- 07-2017 at East Hurua, P.S- Dharmanagar, North Tripura District you being the husband of Purnima Nath subjected said Purnima Nath to cruelty by torturing her physically and mentally to meet your unlawful demand of money and thereby committed the offence punishable under Section 498A of the Indian Penal Code and within the cognizance of this court.
Crl.A(J) 06/2020 Page 4 of 58 Secondly, that you on 28-07-2017 at 04.00 hours at East Hurua, PS. Dharmanagar, North Tripura District committed murder by intentionally causing the death of your wife namely Purnima Nath and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of this court.
And I hereby direct that you be tried by this court on the said charges."
The appellant pleaded not guilty to the charges and claimed trial.
[5] In order to bring home the charge, as many as 20(PW1-PW20) witnesses including the parents [PW-1 and PW-9] of the deceased were introduced and examined and as many as 11 documents [Exhibit 1-11a] were relied upon by the prosecution.
[6] After the recording of prosecution evidence was concluded, the learned trial Judge explained to the appellant, the incriminating circumstances appearing in evidence against him and recorded his replies in terms of Section 313, Cr.P.C. The appellant pleaded innocence and false implication. The relevant extract of his statement recorded under question no.49 reads as under:
"The case is totally false. Investigation was not done properly. About after 1 ½ month of the marriage my wife asked me to purchase one mobile phone, accordingly, I purchased one mobile set at Rs.1500/-for her but she was not satisfied and then I assured her to give her another valuable mobile phone after about 5/6 months but she did not agree. Since then she used to ask me to go her parental house permanently but I denied and since then most of the time she used to pressure me to go to her parental house and on that score little bit quarrel used to take place in between us. On the date of incident I went out from house in the morning for driving vehicle of other but after few hours my father called me house and after coming house I found my wife hanging in the room and then I brought down from hanging and informed the neighbours and in laws."
Crl.A(J) 06/2020 Page 5 of 58 [7] On the culmination of trial, the learned trial Judge having appreciated the evidence, convicted and sentenced the appellant to undergo Rigorous Imprisonment [RI] for 3 years with fine of Rs.10,000/- with default stipulation under Section 498A, IPC and Rigorous Imprisonment [RI] for life and fine of Rs.10,000/- with default stipulation under Section 302, IPC which is under challenge before us.
[8] We have heard Sri S. Kar Bhowmik, learned counsel appearing on behalf of the appellant and Mr. Ratan Datta, learned Public Prosecutor for the state respondent. [9] Assailing the judgment and order of conviction and sentence passed by the learned trial court, Mr. Kar Bhowmik, learned counsel of the appellant has strenuously argued that the finding of conviction and sentence of the appellant is unsustainable in as much as there is no evidence to substantiate the charges brought against him. [10] It is contended by learned counsel that Smt. Purnima Nath [deceased] allegedly died on 29.07.2017 in the morning and her inquest was held by PW-20 at 9.30 am. Both the father [PW-1] as well as the sister [PW-12] of the deceased, were present at the time of inquest. Thereafter, the post mortem was performed at 2.30 p.m. But the FIR was lodged by the father of the deceased [PW-1] at the Crl.A(J) 06/2020 Page 6 of 58 police station in the night at about 10.53 p.m. Having pointed out to the unexplained delay in lodging the FIR, Mr. Kar Bhowmik, learned counsel, has contended that such delay is fatal to the prosecution because in the given facts and circumstances of the case, such unexplained delay in lodging the FIR only suggest that the prosecution case against the accused is the result of concoction and after thought and there is no truth in it.
[11] It is also argued by Mr. Kar Bhowmik, learned counsel that FIR cannot be lodged after the inquest is done and in support of his contention learned counsel has referred to the decision of the Apex Court in Ramesh Baburao Devaskar and Ors. vs. State of Maharashtra reported in (2007)13 SCC 501 wherein the Apex Court vide paragraph 18 has held as follows:
"18. A First Information Report cannot be lodged in a murder case after the inquest has been held. The First Information Report has been lodged on the basis of the statements made by PW-11 to the informant himself at the spot. If the said prosecution witness who claimed himself to be the eyewitness was the person who could lodge a first information report, there was absolutely no reason as to why he himself did not become the first informant. The first information report was recorded on the basis of his information given to the first informant at the spot. All information given by him to PW-13 was made before the investigating officer himself. What prevented him from lodging the first information report is beyond our comprehension. PW-11, we may place on record, categorically stated that he had disclosed the details of information to all concerned. Therefore, it is expected that the first informant was informed thereabout. We have noticed hereinbefore that the information given by PW-13 had at least been Crl.A(J) 06/2020 Page 7 of 58 recorded by the police in the crime register and he categorically stated a few facts, viz., the main accused Accused No. 9 committed murder of his brother Shivaji Patil and one Baburao Patil. Even the place where the murder took place was known to him. If we are to believe the investigating officer, he recorded the statement after holding inquest. The detailed report in regard to the nature of injuries as also the place where the injuries were inflicted was known to him as inquest report had already been prepared. Such an attempt on the part of the investigating officer has been deprecated by this Court in a large number of decisions............"
[12] Further contention on behalf of the appellant is that despite having knowledge of the commission of a cognizable offence, no FIR was registered by police. They simply recorded the information as GD entry No.5 dated 29.07.2017 at Dharmanagar Women police station which amounts to breach of the statutory provisions of law. In support of his contention learned counsel has relied on the decision of this High Court in Jhunu Das vs. State of Tripura in (2014) 2 TLR 566 wherein the High Court after making a reference to the judgment of the Apex Court in Lalit Kumari vs. Govt. of UP and Ors. reported in AIR 2014 SC 187 held that if the information given to police discloses commission of a cognizable offence, an FIR shall be registered mandatorily as per Section 154(1), Cr.P.C and the High Court vide para 20 of the judgment observed as follows:
"20. Recording of an FIR is necessary as soon as a cognizable offence is disclosed. The police official has no jurisdiction whatsoever to make an entry only in the G.D. entry register and not record an FIR. Directions are hereby given to all police officials in the State that in case they do not record an FIR when they come to know of a cognizable offence, then serious disciplinary action shall be taken against them and if necessary, action under the Contempt of Crl.A(J) 06/2020 Page 8 of 58 Courts Act shall also be taken against them for violating the judgment of the Apex Court and of this Court."
[13] With regard to the extra judicial confession allegedly made by the appellant confessing his guilt, it is argued by learned counsel of the appellant that such confession was allegedly made while the appellant was obviously in police custody and therefore, such confession is inadmissible in evidence in terms of Sections 25 and 26 of the Indian Evidence Act and the conviction based on such confession is clearly unsustainable in law. In support of his contention learned counsel has referred to the decision of the Apex Court in Sahadevan and Anr. vs. State of Tamil Nadu reported in (2012) 6 SCC 403 whereby the Apex Court vide paragraph 16 of the judgment laid down the following tests which would make an extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. In Sahadevan the Apex Court has held as under:
"16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
Crl.A(J) 06/2020 Page 9 of 58
iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
[14] As regards the charge and conviction of the appellant under Section 498A, IPC, it is vehemently argued by learned counsel that except the omnibus statement of the parents and sister of the deceased that the appellant subjected the deceased to harassment for dowry, prosecution could not adduce any other evidence in support of the charge. It is also contended by learned counsel that every harassment is not cruelty within the meaning of Section 498A IPC and a conviction under Section 498A based on such allegation of harassment in absence of other evidence of cruelty as contemplated under Section 498A is grossly erroneous and unsustainable. In support of his contention learned counsel has referred to the decision of this High Court in Prwitish Datta and ors vs. State of Tripura reported in (2014) 1 TLR 848 wherein the High Court with reference to an earlier decision of the Gauhati High Court in Biplab Chakraborty Vs.State of Tripura (2011) 6 GLR 775 observed as follows:
"33......... each and every injury and/or harassment either by the husband or by the family members of the husband to the wife victim cannot be considered as cruelty unless the conduct of the husband and the family members are wilful and are of such a Crl.A(J) 06/2020 Page 10 of 58 nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the wife/woman."
[15] It is further argued by learned counsel that mere demand for dowry and omnibus statement of witnesses that for non fulfillment of such demand the wife was subjected to physical and mental torture does not fulfil the ingredients of the offence under Section 498A and a conviction based on such omnibus statement without specific evidence of cruelty meted out to the wife by her in laws is not maintainable. In support of his contention, learned counsel has referred to the decision of this High Court in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134 wherein the High Court vide paragraph 8 of the judgment has held as follows:
"8.It is settled law that mere making of demand and the omnibus statement that for not satisfying the demand she was subjected to physical and mental torture, does not fulfil the ingredients of offence under section 498A of IPC unless specific evidence is adduced regarding the manner and particulars of torture or cruelty exercised by the accused is proved......"
[16] It has been further argued by Mr. Kar Bhowmik with reference to the evidence of the parents[PW-1 and PW-9] of the deceased that for petty quarrels between the spouses in absence of cogent evidence with regard to demand of dowry resulting in mental or physical torture of the woman, the accused cannot be held guilty of offence under Section 498A, IPC. In support of his contention learned counsel has referred to the decision of this High Court in Dhananjoy Shil Crl.A(J) 06/2020 Page 11 of 58 vs. State of Tripura reported in (2013) 2 TLR 1060 wherein the High Court vide paragraph 16 and 17 of the judgment has held as follows:
"16. In Arunava Bhowmik (supra), the Gauhati High Court while acquitting the accused in that case from the charge of 498A, IPC held as under:
"The second submission of the learned counsel for the petitioner is that an offence under section 498A, IPC does not cover a single incident of altercation or assault between the husband and wife."
In this case, there is no allegation against the petitioner that he had demanded a colour T.V. or harassed the informant for that purpose. There is absolutely no evidence that beating or the alleged act in question was with the view to compel the informant to commit suicide. As a matter of fact, there is no evidence of PW1 that the husband had assaulted her on any previous occasion. The witness has deposed about the single incident of assault by the husband and even if we accept the above evidence of PW1, which is not supported by other witnesses, it does not amount to cruelty as defined under section 498A, IPC. We find that the trial court as well as the appellate court has failed to appreciate the evidence in its proper perspective. Both the courts below also erred in holding that the single incident of alleged assault on 04.09.1992 amounts to an offence under section 498A, IPC. Accordingly, we allow this revision and set aside the order of conviction and sentence entered against the accused petitioner. The accused is acquitted and set at liberty forthwith. He need not surrender to the bail bonds."
17. In Manju Ram Kalita (supra), the Apex Court while considering the appeal preferred by the appellant who was guilty of committing the offence under sections 494 and 498A of the IPC observed that petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A IPC and causing mental torture to the extent that it becomes unbearable may be termed as cruelty and ultimately set aside the conviction of the appellant therein under section 498A of the IPC. The relevant paragraphs relied upon by Mr. Sarkar in that case are as under:
"In Girdhar Shankar v. State of Maharashtra, AIR 2002 SC 2078; this court Crl.A(J) 06/2020 Page 12 of 58 held that "cruelty" has to be understood having a specific statutory meaning provided in section 498A, IPC and there should be a case of continuous state of affairs of torture by one to another.
"Cruelty" for the purpose of section 498A, IPC is to be established in the context of section 498A, IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously /persistently or at least in close proximity of time of loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A, IPC.
Causing mental torture to the extent that it becomes unbearable may be treated as cruelty."
[17] Further argument on behalf of the appellant is that the post mortem report [Exhibit-8] read together with the evidence of the medical officer [PW-18] does not support the charge of murder against the appellant in as much as no sign of homicidal strangulation has surfaced on record from their evidence. Rather, the post examination report [Exhibit-8] supported by the oral evidence of PW-18 support the defence case that the deceased committed suicide by hanging.
[18] Finally it is argued by learned counsel of the appellant that it is true that the appellant married the deceased, but the appellant never demanded any dowry from his in laws nor he ever tortured his wife for fulfillment of such demand and the appellant in reply to question no 49 Crl.A(J) 06/2020 Page 13 of 58 in his statement under Section 313 Cr.P.C. has explained the actual reason for which his wife committed suicide.
Under the premises aforesaid, learned counsel urges this court to allow the appeal setting aside the judgment and order of conviction and sentence passed by the learned trial court.
[19] Mr. Ratan Datta, learned PP representing the state respondent on the other hand has opposed the submissions made on behalf of the appellant with reference to the evidence on record and findings recorded by the learned trial court and contended that trial court's judgment is based on cogent evidence and sound reasoning which does not merit any interference in appeal. [20] According to Mr. Datta, learned PP, it has been proved that the appellant murdered his 18 years old pregnant wife by strangulation with an electric cord. It is vehemently argued by Mr. Datta that the post mortem report [Exhibit-8] corroborated by the evidence of the medical officer [PW-18] has established that there was ante mortem grooved ligature mark horizontally situated on the neck of the deceased which is a clear proof of homicidal strangulation. It is further argued by Mr. Datta, learned counsel that the inquest report [Exhibit-1/2] also indicates that there was cut mark on the back of the deceased which is a clear proof of assault preceding to the murder of the Crl.A(J) 06/2020 Page 14 of 58 deceased. Further contention on behalf of the prosecution is that it has been established that except the appellant and his deceased wife there was no other inmate in his house. Therefore, the appellant should have come out with a plausible explanation in the discharge of his burden under section 106 of the Evidence Act as to how his wife hung herself. It is further contended by Mr. Datta, learned PP that in absence of such explanation on behalf the appellant and in view of the incriminating circumstances proved against him, learned trial court rightly held the accused guilty of the charges under sections 498A and 302, IPC and convicted and sentenced him. Learned PP, therefore, urges the court to dismiss the appeal and maintain the conviction of the appellant and sentence awarded to him.
[21] Having regard to the subject matter of this appeal and questions involved, it would be appropriate to take note of the relevant aspects emerging from the statements of the material witnesses examined at the trial. [22] Among the 20 witnesses examined on behalf of the prosecution PW-1, Rohini Nath, is the father of the deceased who lodged the FIR [Exhibit-2/1] in this case. In his examination in chief, the PW asserted that a month after her marriage, his deceased daughter complained to her mother [PW-9] about the torture of her husband for dowry and when PW-9 reported the matter to him he gave Crl.A(J) 06/2020 Page 15 of 58 Rs.20,000/- in cash to the appellant after borrowing the money from his brother in law Himangshu Nath. Despite payment of dowry, the appellant continued torturing the deceased. Again before a week of her death, the PW gave Rs.20,000/- in cash to his appellant son in law. 7 days thereafter, the PW was informed that his daughter (deceased) died in her matrimonial home. He rushed in to the matrimonial home of his daughter and found her lying dead with injuries on her body. The relevant assertions made out by him in his examination in chief are as follows:
"After about 7 days of paying 20,000/- once in the morning I received an information that my daughter Purnima had already died in her matrimonial house and then I rushed to the spot and found there police and other people. I also found dead body of my daughter and at that time I found one injury mark over her backside and also mark of strangulation over the neck. Darogababu also prepared surathal over the dead body of the deceased Purnima in presence of me and this is my signature in the surathal report. On identification the same is marked as Exhibit-1. At the time of death my daughter was carrying 4 months of pregnancy. Thereafter I lodged a written complaint with OC, Dharmanagar Women PS and my ejahar was written by one lady advocate, daughter of advocate Sukhamoy Dey as per my version."
The PW was confronted in cross examination and in reply to the questions of the cross examiner he stated that before the death of his daughter he never made any complaint to the local panchayet or police about the dowry demand of the appellant and torture committed by the appellant on his daughter. The PW also admitted in his cross examination that there was no dowry demand on behalf of the appellant at the time of marriage of his Crl.A(J) 06/2020 Page 16 of 58 daughter with the appellant. In this regard, the PW categorically stated in his cross examination as under:
"It is a fact that there had been no demand from the part of the accused at the time of marriage"
[23] As noted above, PW1, father of the deceased had seen injury mark on the dead body of his daughter when the inquest was being held in his presence. Therefore, it would be appropriate to have a look at the outset into the evidence of Smt. Bandana Chowdhury, PW-20, who held the inquest and also the other prosecution witnesses who witnessed the inquest being done and the medical officer[PW-18] who held the autopsy for appreciation of evidence with regard to the cause of death of the deceased. [24] Smt. Bandana Choudhury [PW-20] stated in her examination in chief that soon after receiving the information about the death of Smt. Purnima Nath she arrived at the house of the deceased. The appellant opened the door of the house and the PW found the dead body of the deceased lying on her bed under a blanket. The PW held the inquest of the body in presence of Himangshu Deb, Executive Magistrate and prepared inquest report [Exhibit- 1/2] and after preparing the inquest report she transported the dead body of the deceased to hospital for autopsy. It emerges from the inquest report [Exhibit-1/2] that there was a 1 ½ inch cut mark on the back of the deceased and she was also found pregnant. This apart the PW also found Crl.A(J) 06/2020 Page 17 of 58 "blackish mark of rope on her throat". The relevant extract of her inquest report [Exhibit-1/2] is as under:
"In connection with the aforesaid case, today dated 29/07/2017 AD at about 9.30 minutes in the morning, I Bandana Choudhury, SI of Women police station of Dharmanagar, do hereby engage myself in preparing the inquest report of the deceased Purnima Nath in presence of beside mentioned witnesses and as per identification of witness no.1.
The height of the deceased will be about 5 feet. The body complexion of the deceased is black, hair is black and curly. I found her on the bed of her own dwelling but with head pointed towards the South. No one lives in the dwelling house of the deceased except her husband. The husband of the deceased was in the backyard of the house at that time. That is when I went there to prepare inquest report and at that time by hearing my sound of calling, he came inside the room. Thereafter I had sent the news to her father's house. I had started preparing inquest report after their arrival. I came to know from the husband of the deceased that the deceased had died on yesterday night i.e on 28/07/2017 at 2100 hrs by hanging herself. But it should be mentioned here that I have not found any type of cloth or rope on the throat of the deceased. I have found blackish mark of rope on her throat. There were only one blouse and bra on the wearing of the deceased and that was also found over her breast. Besides no clothe was there in any part of the body of the deceased. She was covered with one bedcover. I found the eyes, mouth of the deceased in closed state. Froth was coming out from the left nostril of the nose of the deceased.
By turning the deceased upside down it is found that 1 / 1 ½ inches long cut mark is there on the back of the deceased and apart from that no mark was there elsewhere. On being asked, I came to know that the deceased was pregnant of seven months. No excreta was found coming out of the body of the deceased. The hands of the deceased were straight and legs were kept in normal state.
Crl.A(J) 06/2020 Page 18 of 58 Still to ascertain the actual cause of the death of the deceased, the deceased is sent to the morgue of the Dharmanagar Hospital with proper police guard."
[25] Smt. Rimpi Nath, PW-12, sister of the deceased, also witnessed the inquest of the dead body of her sister on 29.07.2017 in the morning. The PW has categorically asserted in her examination in chief that she found the ligature mark around the neck of her deceased sister and signed the inquest report as witness. The relevant extract of her deposition is as under:
"On 29.07.2017 in the morning hearing the news of death of my sister Purnima Nath, I went to her matrimonial home at East Hurua and then found her dead and there police was also available and at the time while police preparing inquest report over the dead body of the deceased, I found ligature marks over her neck and back side. After preparation of the inquest report I put my signature in the inquest report and this is my said signature. On identification the same is marked as exhibit-1/1"
This PW in her examination in chief also supported the evidence of her father [PW-1] saying that the love affairs between the appellant and her deceased sister matured into marriage and since marriage the appellant started demanding dowry of Rs.1,00,000/-. In order to meet the demand of the appellant, her father [PW-1] borrowed rupees 20,000/- from her matrimonial uncle Himangshu Nath and gave it to the appellant and few days thereafter, her sister was found dead.
Crl.A(J) 06/2020 Page 19 of 58 In her cross examination she denied the suggestions of the cross examiner that her sister committed suicide owing to poverty and the appellant was implicated in false charges.
[26] With regard to the ante mortem injuries and cause of death of the deceased, Dr. Sudipa Biswas [PW-18] who had conducted the post mortem examination over the body of the deceased and prepared post mortem report [Exhibit-8], recorded the following observations and opinion in her examination in chief:
"On 29.07.2017 myself along with Dr. Subrata Biswas and Dr. Sharmistha Chakraborty were entrusted for PM examination of deceased Purnima Nath in c/w Women DMN PS GDE No. 05 of Women Dharmanagar PS. Accordingly we started the examination from 2.30 pm and completed the same at 5.45 pm. The surathal report of the deceased was forwarded to us and on examination we found [1] bruise over back measuring 1 cm x 1 ½ cm near the midline, grooved horizontal ligature mark extending from 4cm below one mastoid process to 4cm below another mastoid process, ligature absent in the back of neck. [2] In thorax we found haemorrhage in subcutaneous tissue and muscles of neck, thyroid cartilage fractured. [3] In abdomen we found lump present in the lower abdomen and pregnancy found. Blood stain found present in mouth and nostril. Foul smelling black colour semi liquid stomach content present.
Cause of death was due to mechanical asphyxia as a result of compression of neck. Viscera was preserved and handed over to police for analysis. There was no evidence of forceful intercourse in recent. So, vaginal swab and vulva swab was reserved and handed over to police for analysis. Thereafter, we prepared report in details and signed by us jointly and the Crl.A(J) 06/2020 Page 20 of 58 handwriting of the report was of mine and this is my signature in the report and along with signature of other two doctors whose signature are acquainted to me being colleague. On identification the PM report as a whole is marked as Exhibit-8"
, Same opinion was recorded in the post mortem examination report [Exhibit-8]. The PW in her cross examination stated that she did not have any special knowledge in toxicology. She further stated that she did not mention the time of death of the deceased in her report. She, however, denied the suggestions of the cross examiner that she had authored a hypothetical report based on assumption.
[27] Doctor Sarmistha Chakraborty, [PW-19] simply stated in her examination in chief that she was in the team of the medical officers who conducted the post mortem examination of the body of the deceased and as a member she signed the post mortem report [Exhibit-8]. [28] Now we turn to the evidence of Smt. Supriya Nath, mother of the deceased who appeared in the witness box as PW-9. She had asserted in her examination in chief that the love affairs between the appellant and her daughter [the deceased] matured into their marriage and after marriage they lived a happy conjugal life only for few days and after about 01 month of the marriage her appellant son in law demanded one lakh as dowry. Her deceased Crl.A(J) 06/2020 Page 21 of 58 daughter conveyed his demand to her and complained that the appellant started abusing her for fulfillment of his demand. Her husband [PW-1] somehow collected Rs.20,000/- from her brother Himangshu and paid it to the appellant which could not appease the appellant. The torture on her daughter continued. Day before her death, the appellant met the PW and told her that the deceased stopped talking to him and the appellant urged the PW to come to his home and meet her daughter (deceased). The PW did not go there because her husband [PW-1] was away from home at that time. On the following day Purnima was reported to have died. The PW further stated that once her deceased daughter met the panchayet member namely Smt. Bipula Nath [PW-5] and complained to her about the torture committed on her by her appellant husband.
The PW was subjected to cross examination and in her cross examination she stated that the matrimonial house of her deceased daughter was situated at a distance of 2 ½ kms from their house. She also stated that never before the death of her daughter she made any complaint to any authority about the dowry related torture committed by the appellant on her daughter.
She denied the suggestions of her cross examiner that there was no demand of dowry and no torture was committed on her daughter by the appellant. She also denied the suggestion of the cross examiner that her Crl.A(J) 06/2020 Page 22 of 58 daughter committed suicide owing to poverty and depression.
[29] Let us now turn to the evidence of Smt. Bipula Nath [PW-5], a panchayet member, who was aware of the occurrence.
Smt. Nath [PW-5] has stated in her examination in chief that the day on which Purnima died, the appellant came to her house and informed her that his wife died. The PW immediately rushed to there and found a crowd in the house. Within a while police also arrived there. Subsequently on 01.08.2017 she went to the police station and in her presence the appellant made a confession at the police station that on 28.07.2017 he killed his wife by strangulating her with an electric cord following a quarrel between them over preparation of pork meat. The PW further deposed that the appellant and the deceased were heard quarrelling with each other on past occasions prior to her death.
In her cross examination she stated that never before the death of Smt. Purnima Nath (deceased), she received any complaint from her against her appellant husband and his parents.
[30] Among the other witnesses, PW-2 is a seizure witness who witnessed the seizure of the viscera, blood sample and vaginal swab of the deceased and also Crl.A(J) 06/2020 Page 23 of 58 witnessed the seizure of 4 coloured photographs of the deceased. This PW did not say anything regarding the involvement of the appellant in the alleged crime. [31] PW-3, Smt. Malati Nath, neighbour of the appellant stated in her examination in chief that the appellant and his deceased wife used to live separately from the parents of the appellant. The PW further stated that she heard hue and cry on some past occasions from the house of the appellant.
In her cross examination she stated that she could not say who made such hue and cry.
[32] PW-4, Dibyendu Das, stated in his examination in chief that pursuant to the request of the investigating officer namely Smt. Paramita Pandey, he appeared at the police station on 31.07.2017 and heard the appellant confessing that he killed his wife by strangulating her on 28.07.2017.
In his cross examination he denied the suggestion of the cross examiner that he did not hear the appellant making such confession.
[33] Similar evidence was given by Sri Binanda Nath, PW-6, who stated in his examination in chief that he and his wife were called at the police station on 01.08.2017 where they heard the accused appellant confessing at the police Crl.A(J) 06/2020 Page 24 of 58 station that following a quarrel with his wife over the preparation of pork meat he killed his wife by strangulating her with an electric cord.
In his cross examination the PW stated that on 28.07.2017 morning the appellant met him in his house and informed him that his wife committed suicide by hanging. [34] PW7, Smt. Jhuma Debnath, did not give any incriminating evidence against the accused. She simply stated that the marriage certificate of the deceased was seized by the investigating officer in her presence and she signed the seizure list as evidence.
[35] PW8, Samiran Goswami is an auto driver who was called by one Sukomal Ghosh, a neighbour of the appellant on 28.07.2017, morning for transporting the wife (deceased) of the appellant to hospital. The PW has deposed that said Sri Sukomal Ghosh called him over his mobile and informed him that the wife of the appellant needed hospitalization because she was unwell. After the PW came to the house of the appellant with his auto rickshaw, wife of the appellant was taken into his auto rickshaw by the appellant with the help of other people. The PW then touched her body and felt that she was dead. Then he left with his vehicle without taking her to hospital. Crl.A(J) 06/2020 Page 25 of 58 [36] PW10, Satyaranjan Nath acted as a priest at the marriage of the appellant and deceased. His cross examination was declined by the accused. [37] Smt. Manika Debnath [PW-11] did not also give any incriminating evidence against the accused appellant. She simply stated that Doctor Smt. Sudipa Biswas [PW-18] collected the viscera of the deceased at Dharmanagar hospital in her presence which was also seized by police. As a witness, she signed the seizure list.
[38] PW13, Sri Subinoy Ghosh, a neighbour of the deceased, categorically stated that his neighbour Purnima committed suicide on 28.07.2017 and having heard the incidence he came to the house of the appellant and found the dead body of Purnima Nath(deceased). The PW was not subjected to cross examination. Similarly, PW14, Belarani Ghosh, also stated that Purnima Nath, a neighbour of her, committed suicide on 28.07.2017 and she was not aware of the cause of her suicide. Smt. Sima Rani Ghosh, PW-15, a neighbour of the deceased, told that once before the death of Smt. Purnima Nath the appellant met her and requested her to arrange for a vehicle for taking Purnima to hospital for her treatment.
[39] Smt. Nilanjana Dey, PW16, an advocate, scribed the written complaint (Exhibit-2/1) of PW-1. The PW Crl.A(J) 06/2020 Page 26 of 58 indentified the complaint scribed by her and on her identification it was marked as Exhibit-2/1 at the trial. [40] Smt. Manika Debbarma, PW17, is the Sr. Scientific Officer-cum-Assistant chemical examiner who examined the viscera of the deceased in the toxicology division of the State Forensic Science Laboratory and submitted report [Exhibit-7] which reads as follows:
"Result of Chemical Examination:
The exhibits were suitably extracted and analyzed by colour tests & chromatographic method.
TOX/282/17 (A and B)- Negative for the presence of common organophosphorous, organochloro, carbamates, pyrethroids group of pesticide, benzodiazepines, barbiturates group of drugs and ethyl alcohol."
[41] We have already discussed the evidence of Smt. Bandana Chowdhury, women sub-inspector of police who received the information at the police station and registered the case. The PW held the inquest which has been discussed above. Investigation of the case was actually carried out by Smt. Paramita Pandey, Deputy Superintendent of Police who has not been examined as prosecution witness. The PW stated that she was acquainted with the hand writing of Smt. Pandey and on her identification the charge sheet was also taken into evidence by the trial court which was marked as exhibit-12.
Crl.A(J) 06/2020 Page 27 of 58 [42] On appreciation of the evidence, learned trial Judge found the appellant guilty of the charges under Sections 498A and 302, IPC and convicted and sentenced him. Relevant extract of the findings of the learned trial Judge is as under:
"In the given case the motive of the accused person was very much clear as discussed above. In no circumstances it cannot be said that there is absolutely no motive on the part of the accused to murder his wife. Absence of motive may not be relevant in a case where the evidence is overwhelming but it is a plus point for the accused in a case where the evidence against him is only circumstantial but in the instant case all evidence are direct and only pointing towards the guilt of the accused. Moreover, it also reveals from the evidence of the witnesses that the witnesses on many occasion heard hue and cry from the house of the accused which shows that the accused had long drawn dispute with his wife. It is also to be noted that accused was living with his wife in the said house for quite a sometime and except the accused and his wife none was residing there in the said house. It cannot also be said that the prosecution failed to place any material evidence to prove the guilt of the accused beyond all reasonable shadow of doubt and in absence of cogent and material evidence this court cannot reach in a conclusive finding against the accused whereas from the evidence of PW18, Autopsy Surgeon, it is clear that during examination the following injuries were present on the body of the deceased:
(1) bruise over back measuring 1cm x 1 ½ cm near the midline, grooved horizontal ligature mark extending from 4 cm below one mastoid process to 4cm another mastoid process, ligature mark is absent in the back of neck, (2) In thorax there was haemorrhage in subcutaneous tissue and muscles of neck, thyroid cartilage were fractured which was sufficient to cause death of the victim and accordingly the witness in the post mortem examination report Crl.A(J) 06/2020 Page 28 of 58 opined that the cause of death was due to mechanical asphyxia as a result of compression of neck. Aforesaid medical evidenced of the witness speaks about the death of the victim due to strangulation by manual pressure and thus this court reach in conclusive finding that it is the accused who was the author of the offence.
However, PW-20, Smt. Bandana Choudhury, the Investigating officer of this case, upon completion of the investigation of the instant case submitted charge sheet against the FIR named accused Paritosh Nath for the commission of offences punishable under Sections 498A/302 of IPC and the prosecution nicely led their evidence towards the commission of offences punishable under sections 498A/302 of the Indian Penal Code by the accused beyond all reasonable shadow of doubt.
Accordingly the accused namely Sri Paritosh Nath @ Babu, S/O Sri Narayan Nath, village: East Hurua, P.S. Dharmanagar, District: North Tripura is found guilty for the commission of offences punishable under sections 498A/302 of the Indian Penal Code."
[43] The above passage of the trial court's judgment would clearly show that the learned trial court found that the prosecution version rested on circumstantial evidence and the following circumstances were highlighted in the judgment to find the accused guilty:
(a)Cruelty meted out to the deceased by the appellant consequent to the non fulfillment of his demand for dowry was proved against the appellant.
(b) The medical evidence read together with the inquest report proved that the appellant assaulted the deceased prior to her death and killed her by strangulation with an electric cord.
(c) The strained relationship between the appellant and the deceased had driven the appellant to kill his wife (deceased).
(d) The incriminating circumstances brought on record by the prosecution stood established against the appellant which led the Crl.A(J) 06/2020 Page 29 of 58 learned trial court to draw inference of guilt of the accused appellant.
[44] We have given our anxious consideration to the rival contentions of the parties and examined the entire record with reference to the law applicable to ascertain the correctness of the finding of the learned trial court. [45] We shall first deal with the submission of learned counsel with regard to delay in lodging the FIR. It is true that father of the deceased [PW-1] and his younger daughter Rimpi Nath [PW-12] were present when the inquest of the dead body of Smt. Purnima Nath was done at 9.30 a.m in her matrimonial home. Thereafter, the post mortem examination was completed at 5.45 p.m in the afternoon and the FIR was lodged in the night at 10.53 p.m. It was, therefore, contended on behalf of the appellant that such delay occurred because a false case was manufactured and lodged against the appellant. We do not find merit in the submission of learned counsel of the appellant because the first informant father of the deceased [PW-1] has categorically stated in his cross examination that he made a complaint to police in presence of the local people at the matrimonial home of his deceased daughter. The statement of PW-1 is believable because, PW-20, the officer-in-charge of Dharmanagar Women Police Station who reached the spot for holding the inquest met PW-1 there. She could have reduced the complaint of PW-1 into writing and treated Crl.A(J) 06/2020 Page 30 of 58 it as an FIR, if the complaint disclosed a cognizable offence without waiting for a written FIR to be filed by PW-1. Obviously it was a lapse on the part of PW-20 and the prosecution case cannot be disbelieved on this ground alone. The facts of Ramesh Baburao Devaskar(supra) which has been relied upon by learned counsel of the appellant being completely distinguishable, the appellant cannot derive any benefit from the decision on his defence. In the case of Jhunu Das(supra) relied upon by learned counsel of the appellant, this High Court held that registration of FIR is mandatory as soon as a cognizable offence is disclosed and if it is not done, the erring police officer would be liable to disciplinary action and if necessary an action for contempt of court also. But the prosecution case cannot be wholly discarded on this ground alone. In Ruhid Miah vs. state of Tripura reported in (2014) 2 TLR 350 where belated filing of the FIR was one of the grounds of challenge in the appeal against the trial court's order of conviction and sentence, this High Court found that the FIR was lodged after the inquest was carried out at the spot and the High Court after making a reference to the decision of the Apex Court in Kailash Cour and Ors. v. State of Assam, observed as follows:
"25. We shall now take up the first question raised by Sri Bhowmik regarding delay in lodging the FIR. Sri Bhowmik has placed strong reliance on the judgment of the Apex Court in Kailash Cour and Ors. v. State of Assam, 2012 Crl. LJ 1050 in which the Apex Court has made the following observations:
Crl.A(J) 06/2020 Page 31 of 58 "27" There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, ill- trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem, etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two..."
The law is well settled that if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version, the delay would be fatal. However, delay by itself cannot be a ground to disbelieve and discard the entire prosecution evidence. Reference may be made to the judgments of the Apex Court in State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71 and Dilwar Singh v. State of Delhi, (2007) 12 SCC 641. The case before the Apex Court was one where three members including two young children in a family had been killed by a mob. The Apex Court came to the conclusion that the eye-witness produced before the court could not have seen which of the accused actually caused the injuries or who were the persons present in the mob. It was in the context that the observations relied by the appellant were made."
[46] In this case we have noticed that father of the deceased made a complaint to the police officer[PW-20] whom he met at the spot when the lady police officer was holding inquest in terms of Section 174 Cr.P.C. and after inquest, the body of the deceased was forwarded to hospital for post mortem examination. No case was then registered on the oral complaint of PW-1. Later, he met an advocate and got his complaint written by her which was filed by him at the police station on the same day. In the given facts and Crl.A(J) 06/2020 Page 32 of 58 circumstances of the case, the informant [PW-1] cannot be blamed and held responsible for lodging the FIR belatedly and the prosecution case cannot be disbelieved on this ground alone.
[47] With regard to the charge of Section 498A IPC against the appellant, the learned trial Judge did not assign any reason in his judgment as to why he found the appellant guilty of offence punishable under Section 498A IPC. It is apparent on the face of the record that the appellant as well as his in laws belonged to the poor strata of society. It was, therefore, not unlikely that there would be discord and differences in the domestic life of the appellant. Petty quarrels arising out of such discord and differences in conjugal life would not amount to cruelty within the meaning of clause (a) of Section 498A IPC unless it is proved that the cruelty meted out to the wife was a willful conduct of the appellant which was likely to affect her normal mental frame and drive her to commit suicide out of depression or to cause grave injury or danger to her life, limb or her mental or physical health. For establishing the commission of offence under clause (b) of Section 498A IPC, it has to be proved that the appellant or his relatives subjected his deceased wife to harassment with a view to coercing her or her relatives to meet his demands for dowry or such harassment was made due to the failure of her or her relatives to meet such demand. Now, we have to Crl.A(J) 06/2020 Page 33 of 58 ascertain from the evidence recorded by the trial court as to whether prosecution has been able to bring home the charge under Section 498A IPC to the accused. [48] In the case of Prwitish Datta and Ors.(supra) this High Court held that every case of harassment either by the husband or his family members to the wife cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is wilful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama (supra) which has also been relied upon by learned counsel of the appellant, this High Court observed that on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC. In the case of Dhananjoy Shil (supra) also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.
Crl.A(J) 06/2020 Page 34 of 58 [49] In the given context, PW-1, father of the deceased, admitted in cross examination that at the time of marriage, his appellant son-in-law did not make any demand of dowry. It has also surfaced on record that neither the deceased nor her parents made any complaint to any authority about the torture allegedly committed to her by her husband for non fulfilment of his demand for dowry. Smt. Supriya Nath, PW-9, who is the mother of the deceased, asserted in her examination in chief that her deceased daughter once met Smt. Bipula Nath [PW-5], a local panchayet member and complained to her about the torture of her husband for dowry. But Smt. Bipula Nath [PW-5] denied this fact and stated in her cross examination that she never received any complaint from any corner against the appellant. The PW, however, told the court at the trial that quarrels took place between the appellant and his wife prior to the death of the wife. PW-1, father of the deceased deposed that he borrowed rupees 20,000/- from his brother-in-law and paid it to the appellant. His wife PW- 9, also supported his evidence and told that her husband borrowed rupees 20,000/- from her brother Himangshu and paid the money to her appellant son-in-law which is also supported by PW-12, sister of the deceased. But Himangshu is not examined to prove the fact that he actually paid the money to meet the demand of the appellant. In fact, except the omnibus statement of the parents [PW-1 and PW-9] and the sister [PW-12] of the deceased that she was subjected Crl.A(J) 06/2020 Page 35 of 58 to torture by her husband for non fulfillment of his demand of dowry, no other cogent and specific evidence has been adduced in support of the charge. There is no specific evidence as to how and when the appellant tortured or harassed his wife (the deceased) for dowry. Evidently, the appellant and his wife had love affairs which matured into their marriage. Some of the neighbours of the appellant also gave evidence at the trail. Among them PW-3, Malati Nath asserted in her examination in chief that on some past occasions she heard hue and cry from the house of the appellant where the appellant used to reside with his wife (deceased). In her cross examination, she said that she was not sure as to who raised such hue and cry. PW-5, Smt. Bipula Nath, also supported such evidence saying that she heard the appellant and his wife quarrelling with each other on some occasions prior to her death. None of them heard about any kind of torture committed by the appellant on his wife for dowry. From the evidence discussed herein above it is established that the couple did not have a congenial conjugal life and there were intermittent skirmishes between them which is not enough for his conviction under Section 498A, IPC.
[50] In view of the evidence discussed herein above and the law enunciated in the decisions cited above, we are of the view that the prosecution could not establish the charge of cruelty as enumerated under Section 498A IPC Crl.A(J) 06/2020 Page 36 of 58 against the appellant and therefore, the judgment and order of conviction and sentence of the appellant under Section 498A IPC needs to be set aside by us.
[51] Now, we shall deal with the issue as to whether the death of Smt. Purnima Nath (the deceased) was caused by suicidal hanging or homicidal strangulation. According to the prosecution version, the accused appellant killed his wife by strangulation with an electric cord which was recovered and seized by police vide seizure list [Exhibit-5] from near her dead body on her bed and in this regard the appellant also made extra judicial confession of his guilt to his neighbours. The appellant on the other hand in his statement under Section 313, Cr.P.C had set up a specific case in answer to question no 49. His case is that his deceased wife demanded a mobile phone from him and accordingly he purchased a mobile set worth Rs.1500/- for her which could not satisfy her. Though he promised to purchase a better mobile for her after 5-6 months, she was not happy. Apart from it, she also used to insist upon the appellant to shift to her parental house for living there permanently and they had some quarrel on that issue. On the date of occurrence, few hours after the appellant, a driver, went out for work, his father called him home and after returning home, he found his wife hanging inside the room. As stated by him, he brought her down from the hanging position and informed the neighbours and his in- Crl.A(J) 06/2020 Page 37 of 58 laws. As regards the confession made by him, the appellant has stated in his examination under Section 313 Cr.P.C that he made such statement in fear of torture when he was in police custody. It stands established from the evidence of PW-4, PW-5 and PW-6 that the appellant was in police custody when he made such confessional statement before them. It goes without saying that such confessional statement made by the appellant cannot be acted upon in view of the provisions of Section 25 and 26 of the Indian Evidence Act.
[52] To resolve the controversy about the cause of death of Smt. Purnima Nath, the deceased, it would be appropriate to refer, at the outset, to the inquest report held by Smt. Bandana Chowdhury, a woman sub-inspector of police [PW-20] on 29.07.2017 at 9.30 a.m. Her inquest report [Exhibit-1] reads as follows:
"In connection with the aforesaid case, today dated 29/07/2017 AD at about 9.30 minutes in the morning, I Bandana Choudhury, SI of Women police station of Dharmanagar, do hereby engage myself in preparing the inquest report of the deceased Purnima Nath in presence of beside mentioned witnesses and as per identification of witness no.1.
The height of the deceased will be about 5 feet. The body complexion of the deceased is black, hair is black and curly. I found her on the bed of her own dwelling but with head pointed towards the South. No one lives in the dwelling house of the deceased except her husband. The husband of the deceased was in the backyard of the house at that time. That is when I went there to prepare inquest report and at that time by hearing my sound of calling, he came inside the room. Thereafter I Crl.A(J) 06/2020 Page 38 of 58 had sent the news to her father's house. I had started preparing inquest report after their arrival. I came to know from the husband of the deceased that the deceased had died on yesterday night i.e on 28/07/2017 at 2100 hrs by hanging herself. But it should be mentioned here that I have not found any type of cloth or rope on the throat of the deceased. I have found blackish mark of rope on her throat. There were only one blouse and bra on the wearing of the deceased and that was also found over her breast. Besides no clothe was there in any part of the body of the deceased. She was covered with one bedcover. I found the eyes, mouth of the deceased in closed state. Froth was coming out from the left nostril of the nose of the deceased.
By turning the deceased upside down it is found that 1 / 1 ½ inches long cut mark is there on the back of the deceased and apart from that no mark was there elsewhere. On being asked, I came to know that the deceased was pregnant of seven months. No excreta was found coming out of the body of the deceased. The hands of the deceased were straight and legs were kept in normal state.
Still to ascertain the actual cause of the death of the deceased, the deceased is sent to the morgue of the Dharmanagar Hospital with proper police guard."
[53] The circumstances which stand established by the inquest report [Exhibit-1] are that except the appellant and the deceased there was no other inmate in their house. The deceased was not found in hanging position. No ligature material was found at the spot by which she hung herself to commit suicide. Rather, she was found lying on her bed inside her room with a grooved ligature mark on her neck and 1 / 1½ inches long cut mark on her back. Except her blouse and bra there was no other clothe in her wearing and her body was covered with a bed sheet only. Her eyes and Crl.A(J) 06/2020 Page 39 of 58 mouth were in closed state and froth was coming out of her mouth and left nostril.
[54] It is now necessary to look at the post mortem examination report and also the evidence of the medical officer [PW-18]. The post mortem examination was carried out by a team of three(03) Doctors led by Doctor Smt. Sudipa Biswas [PW-18] on the same day on which the body of the deceased was recovered i.e. on 29.07.2017. The doctors started doing post mortem at 2.30 p.m and completed by about 5.45 p.m. It appears from the post mortem report [Exhibit-8] that the inquest report was given to the doctors by the concerned police officer who held the inquest, before they started doing the PM examination. The post mortem examination report [Exhibit-8] reads as follows:
" POSTMORTEM REPORT
Ref WDN P/S
GDE No-5 of 29/07/2017 Station Dharmanagar
U/S 174 Cr.P.C(.) Day of 29/07/2017
Name, Sex, age and Whence DATE AND HOUR OF Information furnished
caste brought village by Police
and Thana Despatch Examination
Purnima Nath East Hurua DMN PM started As per surathal
18+ years ward No.6 District at 4:30 PM report dead body of
Female Hospital and the deceased was
Hindu PS-DMN completed found on bed of her
W/O Sri Paritosh
Nath at 5:45 PM own house.
I-- EXTERNAL APPEARANCES
1. Condition of 2.Wounds- 3.Bruises position, size and 4.Mark of
Subject stout, position, nature ligature on neck,
emaciated size, dissection and c.
decomposed & c. characted
-stout NIL Bruise over back 1cm x 1 ½ Grooved
-face congested CM in size near the midline. horizontal
-clothes were cut ligature mark
while undressing
extending from
Crl.A(J) 06/2020
Page 40 of 58
her 4cm below one
-Silver chain mastoid process
present in neck and to 4cm below
one black coloured
another mastoid
thread in chest.
-Rigor mortis process.
developed Ligature mark
-Conjunctiva absent in the
congested back of neck.
II--CRANIUM AND SPINAL CANAL
1.Scalp, skull and 2.Membranes 3. Brain and spinal cord vertebrae Normal congested congested III--THORAX
1.Walls 2.Pleurae 3.Larynx 4.Right 5. Left 6.Pericardium 7.Heart 8.Vessels ribs and and trachea lung lung cartilages Epiglottis No congested. abnormality Haemorrhage detected Normal present in congested congested congested congested congested subcutaneous tissue of muscles of neck. Thyroid cartilage fractured.
Mucosa of trachea congested.
IV--ABDOMEN
1.Walls 2.Peritoneum 3.Mouth, 4.Stomach 5.Small 6.Large phabynx and and its intestine and intestine oesophagus contents its contents and its contents Walls of congested Blood Foul Food Faecal abdomen stained smelling particles matter are normal frothing from stomach present present and lump mouth and content lower nostrils (food abdomen particles)pr suggestive esent of about which was 30 wks of blackish in pregnancy colour and semi liquid in nature
7.Liver 8.Spleen 9.Kidney 10.Bladder 11. Organs of generation External & Internal Crl.A(J) 06/2020 Page 41 of 58 Pubic hair- Present
-Adult type in distributing
-Non matted Vulva- No injuries seen.
Labia majora and minora healthy. No injuries seen.
No bleeding or discharge.
Hymen-Old healed tears
Congested
Congested
Congested
are present at 5,7,9
Bladder O'clock position No
empty, congestion seen.
mucosa Vaginal wall-No injuries
healthy seen,
No bleeding or discharge
Anus- Anal margin-no
injuries seen
Uterus-32 cm in length
Foetal length-40cm
Foetal sex-female, hair
present, nail present
Fallopian tube and ovaries-
healthy
V--MUSCLES, BONES AND JOINTS
1.Injury 2.Desease of 3.Fracture 4.Dislocation
deformity
Bruise over back Nil Thyroid cartilage Nil
which is fractured
described earlier
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE Grooved horizontal ligature mark extending from 4 cm below one mastoid process to 4cm below another mastoid process, ligature mark absent in the back of neck.
OPINION OF DOCTOR AS TO CAUSE OF DEATH Cause of death is due to mechanical asphyxia as a result of compression of neck. However, the viscera has been preserved and sent for analysis. There is no evidence of forceful sexual intercourse in recent but vulva and vaginal swab has been preserved and sent for analysis.
"
[55] The post mortem report [Exhibit-8], as above, goes to show that the external injuries noted in the inquest [Exhibit-1] were also noticed during the post mortem examination.
Crl.A(J) 06/2020 Page 42 of 58 [56] With regard to cause of death, the medical officer [PW-18], simply stated that death occurred due to mechanical asphyxia as a result of compression of neck. She has not given any specific opinion as to whether it was asphyxia due to strangulation or hanging. The appellant, as observed by us, has set up a case of suicidal hanging. But, as noted above, no one had seen the deceased in hanging position. PW-20 who held the inquest did not also find any ligature material like rope, saree or dopatta or any other thing at the spot used by the deceased for hanging herself. Rather, it was found by PW-20 during her inquest that except the blouse and bra there was no other clothe in the wearing of the deceased and her body was found lying on her bed covered with a bed sheet only. The prosecution version is that the appellant killed the deceased by strangulation with a one cubit long electric cord [Exhibit- 5/2] which was seized by police from the bed where the body of the deceased was found lying inside her room. PW- 20, Smt. Bandana Choudhury, seized the material and PW-2 and PW-6 witnessed the seizure. They also confirmed at trial that they witnessed the seizure. The evidence of PW-2 and PW-6 with regard to the seizure of the electric cord was not also disputed in cross examination. But a suggestion was put to Smt. Bandana Choudhury [PW-20] that she seized the electric cord from elsewhere to make the prosecution case believable. PW-20 denied the suggestion. During his examination under Section 313 Cr.P.C. the appellant under Crl.A(J) 06/2020 Page 43 of 58 question no. 16 was asked about the seizure of the electric cord. In answer, he said that he did not have any idea about it.
[57] Even though PW-2, PW-6 and PW-20 supported the seizure of the electric cord, the infirmity which has been noticed by us in the evidence of PW-2 and PW-6 with regard to the seizure is that none of them has said actually from where the electric cord was seized. Whether it was seized from the room of the deceased is not known from their evidence. Even in the seizure list [Exhibit-5], it is not specifically mentioned that it was seized from inside the room of the deceased. Moreover, during the investigation, the seized material was not examined to verify whether the ligature mark on the neck of the deceased corresponds with the thickness of the electric cord. In these circumstances the prosecution version that the appellant used this electric cord to strangulate and kill his wife cannot be accepted. But, on this ground alone, the whole story of homicidal strangulation cannot be discarded without further scrutinizing the medical evidence and the surrounding facts and circumstances of the case.
[58] Since the doctor [PW-18] in her opinion part in the PM report [Exhibit-8] has only said that the death occurred due to mechanical asphyxia as a result of compression of neck and she has not given any specific opinion as to whether such asphyxia was due to suicidal Crl.A(J) 06/2020 Page 44 of 58 hanging or homicidal strangulation, we have taken aid from the observations of J.P.Modi recorded in his 'Text Book of Medical Jurisprudence and Toxicology'. Death from asphyxia has been discussed by Modi in chapter 20 at page 475-532 in his book in its 25th edition and it has been observed that violent death resulting chiefly from asphyxia, includes death due to hanging, strangulation, suffocation and drowning (immersion). The situation of ligature mark in the cases of hanging, according to Modi [at page 494] will be as follows:
"The mark is usually situated above the thyroid cartilage between the larynx and the chin, and is directed obliquely upward following the line of the mandible (lower jaw) and interrupted at the back or may show an irregular impression of a knot, reaching the mastoid processes behind the ears towards the point of suspension. The mark may be found on or below the thyroid cartilage, especially in case of partial suspension. It may also be circular if a ligature is first placed at the nape of the neck and then its two ends are brought horizontally forward and crossed, and carried upward to the point of suspension from behind the angle of the lower jaw on each side. The mark will be both circular and oblique, if a ligature is passed round the neck more than once. In this case, there may be evidence of skin bruises, whenever it is caught between the ligatures. Near the position of the knot, it is like inverted 'V'."
[59] Appearance of ligature mark in the cases of strangulation, according to Modi [at page 502] will be as follows:
"(1) Ligature Mark.--Ligature mark is a well-
defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely. The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. The mark may be oblique as in hanging, if the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the victim was sitting and the assailant applied a ligature on Crl.A(J) 06/2020 Page 45 of 58 the neck while standing behind him, thus using the force backward and upward. The base of the mark, which is known as a groove or furrow, is usually pale with reddish and ecchymosed margin. It becomes dry, hard and parchment-like, several hours after death, if the skin has been excoriated. The pattern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in the skin adjacent to the marks. In some cases, the mark in the neck may not be present at the skin adjacent to the marks. In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature...."
[60] As regards the internal appearance, in the cases of strangulation, according to Modi [at page 506], it would be as follows:
"It should be noted here that hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the larynx and the trachea may, in rare cases, be fractured by a fall. Post-mortem fracture of the hyoid bone is characterized by the absence of haemorrhage in the tissues around the fracture.
The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. They may show emphysematous bullae on their surface due to over distension and rupture of the interalveolar septa. The bronchial tubes usually contain frothy, bloodstained mucus. The right side of the heart is full of dark fluid blood, and the left empty. The right ventricle is found contracted and empty like the left, if the heart had continued to beat after the stoppage of respiration. Sometimes, both the cavities are found full, if the heart stopped during diastole. The abdominal organs are darkly congested. The brain is also congested and shows petechial haemorrhages."
[61] A distinction between hanging and strangulation based on case study has also been highlighted by Modi in his book [at page 510-511] in its 25th edition which is as follows:
Crl.A(J) 06/2020 Page 46 of 58 Hanging Strangulation
1. Mostly suicidal. 1. Mostly homicidal.
2. Face-Usually pale and petechiae 2.Face-Congested, livid and marked rare with petechiae.
3. Saliva-Dribbling out of mouth down 3. Saliva-No such dribbling on the chin and chest.
4. Neck-Stretched and elongated in 4. Neck-Not so. fresh bodies.
5. External signs of asphyxia usually 5. External signs of asphyxia, very well not well marked. marked (minimal if death due to vasovagal and carotid sinus effect.)
6. Ligature mark-Oblique, non- 6. Ligature mark-Horizontal or continuous placed high up in the neck transverse continuous, round the neck, between the Chin and the larynx, the low down in the neck below the base of the groove or furrow being thyroid, the base of the groove or hard, yellow and parachment-like. furrow being soft and reddish.
7. Abrasions and ecchymoses round 7. Abrasions and ecchymoses round about the edges of the ligature mark, about the edges of the ligature mark, rare common.
8. Subcutaneous tissues under the 8. Subcutaneous tissues under the mark-White, Hard and glistening. mark-Ecchymosed.
9. Injury to the muscles of the neck - 9. Injury to the muscles of Neck-
Rare Common.
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 11. Fracture of the larynx, trachea and
trachea-Very rare and may be found hyoid bone.
that too in judicial hanging.
12.Fracture-dislocation of the cervical 12. Fracture-dislocation of the cervical vertebrae- Common in judicial vertebrae-Rare. hanging.
13. Scratches, abrasions and bruises 13. Scratches, abrasions fingernail on the face, neck and other parts of marks and bruises on the face, neck the body- Usually not present and other parts of the body-Usually present.
14. No evidence of sexual assault 14. Sometimes evidence of sexual.
Assault.
15. Emphysematous bullae on surface 15. Emphysematous bullae on the of the lungs - Not present. Surface of the lungs- May be Present. [62] In the light of the above, we have examined the observations of PW-18, in her autopsy report [Exhibit-8] which has been prepared by a team of doctors led by her. The autopsy report [Exhibit-8] has disclosed that the face of the deceased and her conjunctiva were congested. A Crl.A(J) 06/2020 Page 47 of 58 grooved horizontal ligature mark extending from 4cm below one mastoid process to 4cm below another mastoid process was found on her neck and on dissection it was found that her membranes, brain and spinal cord were also congested. Her vertebrae were noted to be normal. In her thorax, pleurae were congested, epiglottis was congested and haemorrhage was present in subcutaneous tissue of muscles of her neck. This apart, the thyroid cartilage was found fractured and there were ecchymosed subcutaneous tissues under the mark and both lungs and heart were found congested. In her abdomen, the peritoneum, liver, spleen and kidney were also found congested and there were blood stained frothing from her mouth and nostril. No saliva dribbling from mouth down on the chin and chest was noted.
[63] Having analyzed the post mortem report [Exhibit-8] and deposition of the medical officer [PW-18] in the light of the principles laid down in the Text Book of Medical Jurisprudence and Toxicology authored by Modi, we have noted that the grooved horizontal ligature mark extending from 4cm below one mastoid process to 4cm below another mastoid process which has been found by PW-18 on the neck of the deceased is quite unlikely in the case of a suicidal hanging because in suicidal hanging the ligature mark would usually be situated above the thyroid cartilage between the larynx and the chin, and is directed Crl.A(J) 06/2020 Page 48 of 58 obliquely upward following the line of the mandible (lower jaw) and interrupted at the back or may show an irregular impression of a knot, reaching the mastoid processes behind the ears towards the point of suspension whereas in the present case we have noted from the post mortem examination report that it was a grooved ligature mark situated horizontally on the neck of the deceased extending from 4cm below one mastoid process to 4cm below another mastoid process which is quite unlikely in suicidal hanging . It is further noticed in the post mortem report [Exhibit-8] that the ligature mark was absent on the back of the neck of the deceased. This is not unlikely in the cases of homicidal strangulation. In The Essentials of Forensic Medicine and Toxicology, authored by Doctor K.S.Narayan Reddy, it is noted that sometimes the ligature mark is seen only at the front. The mark may be absent on the back due to clothing or long hair being interposed between the ligature and the skin(at p.255 in the twelfth edition). Another symptom which is less common in suicidal hanging and more common in homicidal strangulation is fracture of thyroid cartilage. Post mortem report [Exhibit-8] of the deceased has established that her thyroid cartilage was fractured. Another classical symptom of hanging is the fracture-dislocation of the cervical vertebrae which is rare in homicidal strangulation. In this case no fracture-dislocation of the cervical vertebrae has been recorded in the PM report [Exhibit-8]. Rather it Crl.A(J) 06/2020 Page 49 of 58 has been noted in column II of the report [Exhibit-8] that the scalp, skull and vertebrae were normal. Another remarkable distinction between hanging and strangulation highlighted by Modi is that in the case of hanging saliva will dribble down the mouth down on the chin and the chest whereas in a case of strangulation, there will be no such dribbling. In the present case no such dribbling of saliva has been recorded in the PM report. Rather, PW-18 noticed blood stained frothing from mouth and nostril of the deceased which has been recorded by her in the PM examination report [Exhibit-8] in column IV. These apart, in the case of hanging subcutaneous tissues under the mark would be white, hard and glistening whereas in the case of strangulation subcutaneous tissues under the mark would be ecchymosed. In the present case PW-18, the autopsy surgeon, has noted in column III (Thorax) in her report [Exhibit-8] that haemorrhage was present in the subcutaneous tissue of the muscles of the neck of the deceased.
The symptoms indicated above, clearly supports a case of homicidal strangulation.
[64] The circumstances brought on record by the prosecution also indicate to the guilt of the appellant. The conduct of the appellant was not at all natural. According to him he found his wife hanging. But he neither reported the matter to police nor to his in laws. Smt. Supriya Nath, his Crl.A(J) 06/2020 Page 50 of 58 mother-in-law[PW-9] categorically stated in her examination in chief that a neighbour of the appellant had informed her that her daughter Purnima died in her matrimonial home. This is not disputed in her cross examination. Father of the deceased [PW-1] also stated in his FIR [Exhibit-2/1] that he received the information about the death of his daughter from the vice chairman of Ganganagar village panchayet. The police officer [PW-20] who held the inquest also asserted in her examination in chief that after arriving at the spot she sent message to the parents of the victim and pursuant to her message they arrived at the spot. Though the appellant, during his examination under Section 313 Cr.P.C stated that his wife committed suicide by hanging, he never disclosed how she hung herself.
[65] Further, PW-20, the woman sub-inspector of police who held the inquest stated at the trial that when she went to the house of the appellant after receiving the information about the death of his wife, she found that the only room in the house of the appellant was closed from outside. The appellant who was found working outside his house came on her call and opened the door of the room. The PW having entered into the room found the dead body of his wife lying on her bed. This piece of evidence of PW-20 was not disputed in her cross examination. The entire piece of evidence was also put to the appellant during his examination under Section 313 Cr.P.C under question Crl.A(J) 06/2020 Page 51 of 58 no.39. The appellant simply answered that the statement of PW-20 was not fully true. According to him, his wife committed suicide by hanging. But none of the witnesses had seen her in hanging position. The appellant in his statement under Section 313 Cr.P.C under question no.49 has stated that he brought down his deceased wife from hanging position. But he did not explain as to how his wife hung herself. PW-20, Smt. Bandana Choudhury, woman sub-inspector of police at Dharmanagar women police station who went to the house of the appellant on 29.07.2017, morning did not also find any ligature material in her room by which the deceased could have hung herself. The appellant in his statement under Section 313 Cr.P.C under question no.49 further explained that he being a driver by occupation left home in the morning for driving vehicle. His father called him home. He did not say exactly when he left his home and when he returned. He could not also produce any supportive evidence in this regard. Moreover, PW-8, Sri Samiran Goswami, an auto driver, has falsified the statement of the appellant by saying that a neighbour of the appellant namely Sukomal Ghosh called him on his mobile to come to the house of the appellant for taking the ailing wife of the appellant to hospital. When PW- 8 came with his auto rickshaw to the house of the appellant, he found the appellant at home. When this piece of evidence of PW-8 was put to the appellant in his examination under Crl.A(J) 06/2020 Page 52 of 58 Section 313 Cr.P.C under question no.18, the appellant answered that the evidence was not true. [66] It has also been established by medical evidence that the deceased was carrying 30 weeks' pregnancy. Evidently, there was no immediate provocation for the deceased to take such an extreme step of finishing her life by committing suicide particularly when she was going to be a mother within a few months. During his examination under Section 313 Cr.P.C, the appellant has stated that his wife committed suicide by hanging out of depression because he could not give her a costly mobile phone. This is quite unbelievable that a woman in her advanced stage of pregnancy would finish her life by committing suicide for such trifling reason. The appellant also came out with a defence case that his wife continuously insisted him to shift to her parental home for living there permanently. He did not agree to her proposal which was another cause of her depression and suicide. This story of the appellant is not also believable particularly when it is established that the couple was living alone in a separate house. Rather, it appears that the appellant resorted to falsehood to get rid of the liability of the offence which goes against him and indicates his involvement in the commission of offence. [67] The Apex Court dwelt on similar situation in Mandahari vs. State of Chattisgarh reported in (2002) 4 SCC 308 and held as follows (vide para 4-5):
Crl.A(J) 06/2020 Page 53 of 58 "4. The most culpable circumstance found to have been proved and accepted by the courts below against the accused is that he had himself made a false report of commission of suicide by his wife and admitted in his examination under Section 313 Criminal Procedure Code that he was present in the house at the time of incident.
His case was that he heard some sound in the adjoining room and when went inside, found his wife hanging by neck with a sari tied on the rafter of the roof of the house. He then untied the sari, brought down the dead body, first reported the matter to the villagers and then to the police. The post-
mortem report prepared on autopsy conducted by Dr. PC Jain (PW -8) shows that there was ligature mark on the neck of the deceased which was anti- mortem. The opinion of the doctor is clear and definite that such ligature mark of 5cm width in horizontal position cannot be caused by hanging but could have been caused by strangulation. Medical evidence, therefore, completely falsifies the case of the appellant that on his return from the field to his house he had found his wife hanging and thus she had committed suicide. The conduct of the accused is also not natural. When he found his wife hanging by neck he neither raised any hue and cry nor called any villagers living nearby. He all alone brought down the body hanging from the roof. He thereafter did not report the matter immediately.
When villagers collected he took a plea that she had committed suicide. He also did not report the matter on his own but, as is deposed by Dilboodh (PW-2), Kotwar, it is on his insistence and of the Sarpanch that he reported the matter to the Police. These witnesses also stated that the wife had complained in the past to the Panchayat that the appellant was ill- treating her and was not providing her food.
5. After hearing learned counsel appearing and on going through the record we find no ground to take a different view of the evidence. The accused in his examination under Section 313 Cr. P.C. had admitted that he was in the house and on hearing a sound had rushed to find his wife hanging by neck. His defence that his wife committed suicide has been found to be false and the same is not corroborated by medical evidence. The above facts coupled with the circumstances that they were not leading a congenial marital life, and unnatural conduct of the accused subsequent to the incident; the spot map (Ex. 7) showing that the rafter of the roof to be at such height as was unapproachable for committing suicide - cumulatively lead only to one irresistible Crl.A(J) 06/2020 Page 54 of 58 conclusion that the accused alone was the author of the crime and had taken a false defence that he had seen the deceased to have committed suicide by hanging herself." [68] In view of what is stated above, the inevitable conclusion is that prosecution has successfully proved all the links in the chain of circumstances against the appellant which lead to the inference of his guilt. Having arrived at this conclusion, it would be appropriate to advert to the fact that the appellant could not offer any acceptable explanation during his examination under Section 313 Cr.P.C. The stand of the appellant is that his wife had committed suicide by hanging and he brought down her body from hanging position before anyone had seen it. He himself stated in his examination under Section 313 Cr.P.C that his father called him home and having returned home he found his wife hanging. Had it been so, his father must have seen his wife hanging. He could have produced his father at the trial to support his statement. Moreover, in his reply under Section 313 Cr.P.C he never stated the time exactly when he left his home for work and when he returned home and found his wife hanging. He is also completely silent about how she hung herself. We have already noted that no ligature material was seen by any of the witnesses inside the room of the deceased which was used by the deceased for hanging. Thus, the answers given by the appellant appear to be vague and a completely false. Though the burden of proof always rests on the prosecution and it cannot be Crl.A(J) 06/2020 Page 55 of 58 shifted to the accused, there may be situation where it becomes impossible for the prosecution to prove the fact because such fact is especially within the knowledge of the accused. In such a situation, if the circumstances established by the prosecution irresistibly lead to the conclusion of the guilt of the appellant, he may come out with an acceptable explanation during his examination under Section 313 Cr.P.C. to exculpate himself from the charges brought against him. The Apex Court dwelt on this issue in the State of Rajasthan vs. Thakur Singh reported in (2014) 12 SCC 211 and held as follows:
"15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
16. Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:(AIR p. 406, para 11) "11.This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the Crl.A(J) 06/2020 Page 56 of 58 section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."
(emphasis supplied)
17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:(SCC p. 694, para 22) "22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of M.P. this Court observed as follows:(SCC p.503, para 22) Crl.A(J) 06/2020 Page 57 of 58 "22.....It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
21. More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of W.B. v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:(State of W.B. v. Mir Mohammad Omar case, SCC p.393, para 35) "35. During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
[69] In this case also the appellant is alleged to have committed the murder of his wife and it has been proved that death occurred to his wife namely Smt. Purnima Nath in his custody and the medical evidence supports a case of Crl.A(J) 06/2020 Page 58 of 58 homicidal strangulation. The circumstances brought on record on behalf of the prosecution unerringly point to the guilt of the appellant. The appellant was, therefore, under an obligation to give a probable explanation about the cause of the unnatural death of his wife. We have noted that in the given fact situation, the explanation offered by the appellant in his examination under Section 313 Cr.P.C is not enough and it is found totally inconsistent with his innocence and we have no hesitation in holding that appellant Paritosh Nath @ Babu is responsible for the death of his wife. Resultantly, the impugned judgment of conviction does not call for any interference in respect of the conviction of the appellant under Section 302 IPC. Hence, the sentence under Section 302 IPC is affirmed. The charge under Section 498A IPC not being proved against the appellant, he is acquitted of the charge.
Consequently the appeal stands partly allowed. Send back the LCR.
JUDGE JUDGE Saikat Sarma Crl.A(J) 06/2020