Calcutta High Court
Digambar Gope And Ors. vs State Of West Bengal on 24 February, 1997
Equivalent citations: 1997CRILJ2072
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. In this death reference case this Court is required to consider whether the sentence of death imposed on the accused Digambar Gope by the learned Additional Sessions Judge, Purulia in Sessions Case No. 81 of 1986 (Tr. No. 26 of 1989) is to be confirmed under Section 366 of the Criminal Procedure Code. Four persons, namely, Digambar Gope, Sridam Gope, Pramila Gope and Mantu Gope were tried by the learned Additional Sessions Judge in respect of charge of murder framed against them under Section 302/34, I.P.C. The learned Additional Sessions Judge on trial acquitted the accused Mantu Gope but convicted the other three accused Digambar, Sridam and Pramila under Section 302/34, I.P.C. and for that conviction imposed death sentence on the accused Digambar Gope and life sentence on the other two accused Sridam Gope and Pramila Gope with fine of Rs. 1,000/- each. All the three accused persons who have been thus convicted and sentenced as stated have also preferred appeal against the orders of: conviction and sentence. Both the death reference case and the appeal have been heard together and are also being disposed of by this judgment.
2. The accused persons were charged with | murder of Bhadubala Gope, the wife of the accused Digambar Gope. The occurrence, whatever might it be, took place on 1-6-1983 in the house of Digambar Gope in village Bazra. On 2-6-1983 at 9.15 a.m. the appellant No. 2, Sridam Gope, the son of Harjit Gope since deceased came to the P.S. and reported that on 1-6-1983 at about 8 p.m. Bhadubala; Gope, the wife of his younger brother Digambar, committed suicide by hanging. On that: basis one U.D. case being Barabazar P.S. U.D. Case No. 7 of 1983 dated 2-6-1983 was started. Thereafter an A.S.I. of Police came to the spot and held inquest on the dead body of the deceased Bhadu and sent the dead body for post-mortem examination. On 4-6-1983 Kedar Natli Gope, the father of the deceased Bhadu however lodged a complaint at the Barabazar P.S. informing that her daughter: Bhadu had expired on 1-6-1983 as reported to him by Mantu Gope in the evening of the 2nd June, 1983. It was further stated by Kedar Gope in the said complaint that her daughter was married to Digambar Gope about five years back and as he failed to pay sufficient dowry for the marriage the husband, the father-in-law, the mother-in-law, the brother-in-law and other family members of the house of the in-laws of her daughter used to torture her and his daughter also reported to him that the members of her matrimonial home tortured her on account of his inability to pay the dowry money. It was stated in the said complaint by Kedar Gope that it was his firm belief that the members of the house of the in-laws of her daughter had killed her. As we have already mentioned, the dead body of the deceased was sent on 2-6-1983 for post-mortem examination after preparation of the inquest report. The post-mortem report was however received on 27-6-1983 by the officer-in-charge of the Barabazar P.S. and on receipt of the post-mortem report he suo motu started a case under Section 302/34, I.P.C. and took up investigation. In due course on completion of investigation charge-sheet was submitted and then trial was also held and, as already mentioned, three of the accused persons were convicted under Section 302/34, I.P.C. One of them, namely, the accused Digambar Gope was sentenced to death while the other two accused were sentenced to life imprisonment with fine.
3. Inquest of the dead body was held on 2-6-1983 at about 1.30 p.m. and an inquest report was prepared. The deceased was found to be hanging by the neck from the wooden joist on the ceiling of the room. As it appears from the inquest report her eyes were partly open and whitish saliva was found to be coming out from the mouth and running towards the left of the body and a light whitish secretion was also found to be coming out of the nose. The tongue had slightly come out. Both the hands were lying straight and the fists were half open and some of the fingers were pointing towards the ground. The feet were slightly bent towards the ground below showing signs of seeking support on the ground below. There was mark of ecchymosis on the throat. But no other mark of injury was found on any part of the body at the time of inquest.
4. P.W. 1 Ranjit Kr. Ganguly is an S.I. of Police. He held inquest on the dead body and prepared inquest report. P.W.2 Kedar Gope is the father of the deceased Bhadubala who was the wife of the accused Digambar Gope. It is the evidence of P.W.2 Kedar Gope that her daughter Bhadubala was married to the accused Digambar Gope about 4/5 years prior to her death and her husband and the family members used to ill-treat her and press her to bring dowry from her father and they even assaulted her. It may be mentioned here that Harjit Gope was the father-in-law of Bhadubala. He is however dead. The accused Pramila Gope is her mother-in-law. The accused Sridam is the elder brother of the accused Digambar. P.W.3 Rishu Gope wrote the written complaint which was signed by Kedar Gope. P.W.4 Bijoy Gope in his examination-in-chief says that he heard that Bhadu Gope committed suicide. He lives in a different place but the house of his maternal aunt is in the village Bazra, that is, in the village of the accused persons. He wants to say that Bhadu Gope used to go to the house of his masima (maternal aunt) and there she narrated to him the sorrow she used to suffer in the house of her in-law. His evidence however does not make out anything concrete. P.W.5 Guru Gope has his father-in-law's house at Bazra. He however does not know how Bhadu Gope expired but he says that prior to her death she met him several times at his in-laws' house and disclosed that the members of her in-law's house always ill-treated her. Kedar is his cousin brother. P.W.6 Srimati Kadhu Gope is the mother of the deceased Bhadu. She says that Bhadu used to visit them after marriage and reported to them that the members of her in-laws' house always ill-treated her and assaulted her for squeezing money as dowry from them, but they were not able to give any money. In her cross-examination she says that she cannot say the date when Bhadu reported her sorrow to her. She says that three months prior to her death Bhadu visited their house. P.W.7 Srimati Budhan Gope was only tendered. P.W.8 is a police constable who carried the dead body of Bhadu to the Morgue. P.W.9 Ramesh Ch. Sarkar is the then Officer-in-charge of Barabazar Police Station who started the case suo motu after receiving the post-mortem report and filled up the formal FIR and handed over the case to another Sub-Inspector of Police for investigation. P.W. 11 B. K. Manna is an S.I. of Police and the I.O. of the case. He says that Khadu Gope did not say to him that Bhadu reported to her about her ill-treatment by the in-laws by creating pressure on her to squeeze money.
5. P.W. 10 Dr. K. B. Sinha is a medical witness and he was the C.M.O.(H), Purulia on the date on which he deposed. He proves the post-mortem report which has been marked Ext.2. The post-mortem examination on the dead body of the deceased Bhadu was of course held not by him but by Dr. Sukumar Chatterjee who was not alive at the time of trial of the accused persons in this case and that is why P.W.10 Dr. K. B. Sinha came in the witness box to prove the post-mortem report prepared by late Dr. Sukumar Chatterjee whose hand-writing he knew. In the postmortem report the following injuries were noted, viz. (1)one continuous ligature mark prominently round the neck below thyroid cartilage, (2) left cornea of hyoid bone fracture and extravasation of blood underneath the ligature mark in the subcutaneous tissues was seen. P.W.10 Dr. K. B. Sinha says that death, in the opinion of the autopsy surgeon, was due to asphyxia as a result of strangulation ante-mortem and might be homicidal in nature. In his cross-examination Dr. K. B. Sinha says that he worked with Dr. Sukumar Chatterjee since 1979 and the post-mortem was held in his presence. He however says that he has deposed on perusing the hand-writing of Sukumar Chatterjee, the autopsy surgeon. The body, he says, was partially decomposed. There is no note about the dimension of the ligature mark and no length of the injury has been mentioned in the post-mortem report. He says that as per the opinion of the autopsy surgeon the cause of death was strangulation. His evidence is to the effect that the expression 'might be' had been used to denote that the death might be homicidal or other than homicidal. P.W.10 Dr. K. B. Sinha however does not say anything about his own opinion on the basis of the factual findings recorded in the post-mortem report. However the opinion recorded in the post-mortem report does not decisively say that the strangulation was homicidal in nature. On the other hand it shows that it might be homicidal which means also that it might not be so. There is however virtually no other evidence or circumstances to indicate that it was a case of murder or homicidal death. The autopsy surgeon's opinion by reason of the use of the words 'might be' only indicates that the death might have been homicidal but at the same time does not necessarily exclude any alternative situation, such as, suicide.
6. It has to be noted that apart from the post-mortem report, virtually there is no other evidence, direct or circumstantial, to indicate that it was a case of murder or in other words, that the death of the deceased was homicidal. Therefore, it requires no emphasis that in coming to a conclusive decision as to the nature of the death the Court will have to be careful and circumspect. As we have seen, the opinion of the autopsy surgeon as recorded in the post-mortem report is also prima facie not clinching by reason of the expression 'might be homicidal' as recorded therein. This rather indicates that the possibility that it might not be a case of homicide was also not ruled out. In view of the ambivalent quality of the opinion of the autopsy surgeon regarding the nature of the death as recorded in the post-mortem report, such opinion evidently does not become a clinching one. At best it could be a piece of supportive evidence, namely, a piece of evidence which could be used to lend support or assurance to other evidence, had there been say, whether direct or circumstantial showing that it was a case of murder. Then again even had there been any other evidence, direct or circumstantial, to show that it was a case of murder yet the question how far such evidence considered either independently or in conjunction with the piece of evidence convertible as a supportive evidence like the postmortem report in the present case is a matter for the assessment of the Court as to whether the totality of the facts, circumstances and evidence including the piece of evidence convertible as supportive evidence in favour of the prosecution would establish the prosecution case beyond reasonable doubt. If it does, then conviction is justified. But it may so happen in a particular case that the available evidence including the circumstantial evidence and the supportive evidence of the nature mentioned above does not inspire the confidence of the Court for holding that the prosecution case has been proved beyond reasonable doubt by such evidence and in such a case the prosecution must fail. But where in a case like the present one there is no evidence, direct or circumstantial, in support of the prosecution case of murder, definitely it will not be safe to press into service the ambivalent piece of evidence like the opinion of the autopsy surgeon in the present case which at best could be only a piece of supportive evidence, as a basic evidence championing the prosecution case on its own strength alone.
7. In order to circumvent the patently ambivalent nature of the opinion of the autopsy surgeon as recorded in the postmortem report, the learned Additional Sessions Judge in his judgment recorded that the words 'might be' in the post-mortem report had been manipulated subsequently. He took note of the fact that the words 'might be' had been written above the concerned line subsequently without any initial or signature of the autopsy surgeon. The learned Court below recorded that it appeared that the words 'might be' had been written by another hand not on the same sitting and there was no signature or initial of the autopsy surgeon. In our opinion the learned Court below went off the track. It is nobody's case that the words 'might be' in that connection were not in the hand-writing of the autopsy surgeon. On the other hand P.W.10 Dr. K. B. Sinha who has proved the post-mortem report says that he knows the hand-writing of Dr. Chatterjee and further says that the post-mortem report Ext. 2 was written and signed by Dr. Sukumar Chatterjee. He does not say that the words 'might be' were not in the hand-writing of Dr. Sukumar Chatterjee. On the other hand his evidence shows that the entire postmortem report which also includes the words 'might be' was written by said Dr. Chatterjee. In cross-examination also Dr. K. B. Sinha specifically says that he has deposed on perusing the hand-writing of Sukumar Chatterjee, the autopsy surgeon. He thinks that the expression 'might be' has been used to indicate that it was homicidal or other than homicidal. Here also the doctor does not say that the words 'might be' were not in the handwriting of Dr. Sukumar Chatterjee whose hand-writing he knows. It was therefore a totally ill-conceived conjecture for the learned Court below to hold that the words 'might be' were written by another hand and not by Dr. Sukumar Chatterjee who prepared the postmortem report. It is possible that the words 'might be' in that connection were inserted by the autopsy surgeon later either on second thought or for correcting an accidental omission but that does not necessarily warrant, in the absence of any explanatory evidence or circumstance, to discard the words 'might be' altogether from the postmortem report on the assumption that it was a subsequent manipulation by another hand. Ext. 1/2 which is the suo motu FIR recorded by P.W.9 Ramesh Chandra Sarkar. the then O.C. of the concerned P.S. on 27-6-1983 after receiving the post-mortem report, also clearly shows that even at that point of time the opinion recorded in the post-mortem report was 'might be homicidal in nature'. Therefore it is plain and evident that the post-mortem report contained the expression 'might be homicidal in nature' even when it was received at the P.S. on 27-6-1983 and the suo motu FIR was recorded after receiving the postmortem report containing the opinion of the autopsy surgeon that the death might be homicidal in nature. The learned court below has considered certain features recorded in the post-mortem report and has arrived at the finding that it was a sure case of homicide. Now, if these features as recorded in the postmortem report were the sure tests of holding it to be a case of homicide, we do not understand why the learned autopsy surgeon as an expert in the matter would have opined that it might be a case of homicide instead of making his opinion certain for homicide. In our opinion it would be rather adventurous and risky for the court to hold for certain something which the expert in the line did not venture to be sure about on the self-same features or factors. The doctor who recorded the features in the post-mortem report was of course not available for his explanatory comments about his opinion on the basis of such features, as he was dead, but the doctor who proved the post-mortem by coming in the witness box was also not asked any question either by the prosecution or by the Court as to what would be his own opinion as a doctor about the nature of death on the basis of the factual features recorded in the post-mortem report. The learned Court below also sought support for his finding by importing certain factors contrary to record?
As for example, the learned Court below in his judgment observes "there was no secretion of the saliva from the mouth of the deceased if she committed suicide". The expression of the learned trial Judge is evidently imperfect. If he wanted to convey the idea by the said expression that in case of suicide by hanging there would be no secretion of saliva from the mouth of the deceased then he is mistaken. Modi's text book itself would show that in case of a death by hanging saliva runs out of the mouth down on the chin and chest. On the other hand if the learned Court below was under the impression that there was no such secretion or running out of saliva from the mouth of the deceased in this case, then also he is mistaken. In the inquest report it has been specifically recorded that saliva was coming out of the mouth and running towards the left of the body. Then again the learned trial Court has recorded in the judgment that P.W.1, S.I. R. K. Ganguly who held the inquest did not find the deceased hanging by a rope or any rope by her side. This is again not at all correct. The inquest report clearly shows that the body was found hanging by a rope, the eyes were partly open, light whitish secretion was also coming out of the nose, the tongue had also slightly come out, some of the fingers of the hand were pointing towards the ground and the feet were slightly bent towards the ground seeking support on the ground below (vide, pages 6 to 10 of Part-I of the Paper Book). These features are indicative, even if not conclusive, that death might have been caused by hanging. That being so, the possibility of its being a case of suicide cannot be ruled out. The learned Court below, it seems, tried to explore the motive for suicide and dealt with the matter as if the onus lies on the defence to prove that it was a case of suicide. In our opinion there being no other evidence direct or circumstantial to show that it was a case of murder and when the opinion of the autopsy surgeon is not decisive but ambivalent and there are features suggestive of the possibility of suicide, whatever might have been the motive, it cannot be held that the prosecution have been able to prove the charge of murder beyond reasonable doubt. In the circumstances we are of the opinion that the learned Court below was not justified in finding the accused persons guilty of the offence they have been charged with.
8. In view of the fact that we are setting aside the conviction of the appellants-accused persons the question of confirming the death sentence does not arise any more. But even then we cannot avoid mentioning that the learned Additional District Judge glaringly misguided himself in imposing death sentence upon the accused Digambar Gope, the husband of the deceased. While the learned Additional District Judge imposed life sentence on the other two accused he thought it fit to impose capital sentence on Digambar Gope, the husband of the deceased mainly because he was the husband of the deceased and the murder was committed inside the family of the Digambar Gope and Digambar Gope allowed Sridam and Pramila to help the murder. We do not understand wherefrom the learned Court below got that Digambar Gope committed the murder and he allowed the two other accused to help murder. It is by this time the settled principle of sentencing that death sentence should be imposed only in rarest of rare cases. The leading decisions of the Apex Court relating to award of capital punishment are Jagmohan Singh v. State of U.P., , Bachan Singh v. State of Punjab, , Shankar v. State of Tamil Nadu, 1994 Cri LJ 3071 : (1994 AIR SCW 2083), etc. A Division Bench of this Court presided over by one of us (G.R. Bhattacharjee, J.) also had an occasion to deal with the question as to in what circumstances it might or might not be appropriate to impose capital punishment where several persons were found guilty of the charge of murder and also to discuss the different decisions of the Apex Court in that connection, in the decision in Rabindra Parida v. State of West Bengal, 1995 Car Cri LR 214 : 100 Cal WN 57 : (1995 Cri LJ 2256). In paragraph 21 of the said decision reported in 1995 Cal Cr LR 214 : (1995 Cri LJ 2256) the Division Bench of this Court observed thus:
It is therefore evident that there may be cases where the evidence unerringly proves participation of all the accused persons where the number of such persons is more than one, in the commission of the offence, yet the evidence may fail to indicate the quality of individual participation in respect of some or all of the accused persons. If the evidence establishes beyond reasonable doubt participation of all the accused persons in the commission of offence with the requisite intention all the accused persons would be found guilty of such offence in view of Section 34 of the Indian Penal Code and all the accused persons will be liable to conviction for the offence in which they participated irrespective of the question of the degree or quality of their individual participation. But then judging of the evidence for the purpose of being satisfied beyond reasonable doubt about the participation of the accused persons in the commission of offence for the purpose of conviction of such accused is something distinctly different from the question of judging the evidence for ascertaining the degree or quality of individual participation of the particular accused in the commission of the offence for the purpose of determining the sentence to be imposed upon the particular accused, and this is so even in a case where the nature of the crime is revoltingly diabolical, notoriously depraved and heinously gruesome. Even in such a case of exceptional nature the quality or the degree of individual participation in the commission of the crime would be a matter for separate consideration for the purpose of determining the nature of the sentence to be imposed on the particular accused. Unfortunately, in our present case there is no evidence of any circumstantial indication about the degree or quality of individual participation of the appellants/ accused persons in the commission of the murder from which it could be visualised that the degree of participation of each accused or any one or more of the accused persons at the individual level was such that the diabolical nature of such participation of the particular accused would warrant and justify a death sentence in the individual case. It is not unlikely that while only one or two of the accused persons took the leading and diabolically gruesome role in executing the murder, the role of other or others was of such lessor diabolical degree as would not have warranted a sentence of death for him or them. In the circumstances, there is a likelihood that sentence of death, by aggregation, for each and every accused may lead to miscarriage of justice in the matter of sentencing, and therefore such a possibility should be avoided. There is also no evidence or any circumstantial indication that the role of any particular accused individually was such as would justify a sentence of death on such accused alone. In the circumstances, to avoid any possible error in sentencing, it is proper to impose life sentence instead of death sentence on each accused.
We reiterate the above quoted propositions which have to be borne in mind while considering the question of imposition of death sentence where several persons have been convicted of murder. For a death sentence the quality of evidence against the concerned accused should be of a high degree bearing reassurance. In the present case even if conviction of the accused persons would have been sustained it would not be a fit case for imposing death sentence on any of the accused on the basis of the facts, circuit stances and evidence on record. However since we are not upholding the conviction for reasons discussed above we reject the death reference arid also set aside the impugned judgment, orders of conviction and sentences and acquit all the three appellants including the appellant Digambnar Gope of the charges framed against them. The concerned appeals accordingly stand allowed and the death reference rejected. The appellants, if in custody, be forthwith released from custody if they are not required to be detained in accordance with law in connection with any other matter. Before we part with we wish that the learned Additional Sessions Judge may apprise himself of the principles relating to imposition of capital punishment more thoroughly.
Dibyendu Bhusan Dutta, J.
9. I agree.