Calcutta High Court (Appellete Side)
Salema Bibi & Anr vs The State Of West Bengal on 1 March, 2016
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Malay Marut Banerjee
CRA No. 616 of 2006
Salema Bibi & Anr.
vs.
The State of West Bengal
For the Appellants : Mr. Joy Sengupta,
Mr. Lakshminath Bhattacharya
For the State : Mr. Subir Banerjee, Ld. A.P.P.,
Mr. Sanjay Banerjee.
Heard on : 01.02.2016.
Judgment On : 01.03.2016.
Ashim Kumar Roy, J.
The appellants, Salema Bibi and Salauddin Sk. @ Menta, mother and son, were placed on trial before the learned Additional Sessions Judge, Fast Track Court, Kandi, Murshidabad to answer charges under sections 302/498A/34 IPC for having committed murder of her daughter-in-law and his wife, Janifa @ Najifa Bibi, by intentionally causing her death and for subjecting her to cruelty during her lifetime.
At the conclusion of the trial, both of them were found guilty for the offences they were charged with and accordingly convicted thereunder and sentenced to suffer imprisonment for life and rigorous imprisonment for three (3) years respectively and to pay fine with default clause.
The prosecution to bring home the charge of murder against the appellants, while entirely relied on circumstantial evidence but to prove, the housewife Janifa @ Najifa Bibi was subjected to cruelty during her lifetime by them based its case on direct evidence. Total eight (8) witnesses were examined from the side of the prosecution but none by the defence. The appellants pleaded not guilty and it was their case that they were falsely implicated.
It is well settled, in a case of circumstantial evidence, the standard of proof requires that all the circumstances to be relied upon against the accused must be fully established without any shadow of doubt and the chain of evidence that may be furnished by those circumstances must also be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances shall not only to be fully established but also should be of conclusive nature and consistent with the hypothesis of guilt of the accused and not capable of being explained by any other hypothesis except the guilt of the accused and when all the circumstances cumulatively are taken together, that should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
Now, coming to the case in hand and considering the evidence of the autopsy surgeon PW/7, we find according to his opinion the cause of death was due to asphyxia following strangulation which is ante mortem and homicidal in nature. The nature and sites of injury furnished by the post mortem report is fully consistent with the opinion of the autopsy surgeon and we have no reason to take a different stand. Besides the injuries found in and around the ligature on the neck, no other external injury was found on the person of the deceased.
The above opinion of the post-mortem doctor was neither disputed before the trial court, nor before us from the side of the defence.
PW/1, Reajul Sk. is the brother of the victim and on his written complaint, the FIR was registered. In his evidence, the PW/1 claimed that his sister during her stay in her matrimonial home was always subjected to physical and mental cruelty by her husband, brother and mother-in-law. It was not his case, either in his presence Nafija was tortured by any one of the appellants or he was informed by his sister about such torture, when she was alive. This witness, however, during his cross-examination admitted for more than 15 years he was residing at the house of his father-in-law and during that period he had no contact with his parent, brother and sister. Neither they ever visited him at his father-in-law's place nor he had any knowledge about their domestic affairs. The said witness further admitted only once he visited the matrimonial house of his sister Najifa after receipt of the information of her death and never before. In fact, the source of his information was not disclosed by the PW/1 in his evidence.
It is therefore evident, the allegations made by the PW/1, the brother of the deceased Najifa that during her lifetime she was subjected to cruelty by the appellants has no leg to stand. Furthermore, the PW/1 himself has ruled out the possibilities of having knowledge about such facts, when on his own admission, he had no connection with his deceased sister for 15 years before her death and no knowledge about her domestic affairs.
During the trial, two of the local villagers, who are residing adjacent to the house of the appellants, were examined as PW/2 and PW/4. They were Maniruddin Sk and Sultana Bibi. None of this witness had implicated the appellants for subjecting Najifa to cruelty during her lifetime. On the other hand, we find from their evidence that the appellant, Salauddin Sk. @ Menta, and his mother, Salema Bibi, were residing separately and their houses were intervened by 50/60 houses. According to the said witnesses they never saw any dispute or quarrel between the appellant, Salauddin Sk. @ Menta, and his wife.
On the face of the above evidence, undoubtedly, the trial court was not at all justified to find the appellants guilty for the offence punishable under section 498A/34 IPC.
The next question we are posed with whether the conviction of the appellants under section 302/34 IPC was justifiable on the face of the evidence on record. It has already been noted so far as such charge against the appellants are concerned, the same is based on circumstantial evidence. However, when the counsel of the State was confronted with the question what was the circumstances which unerringly pointed out the guilt of the appellant and while was compatible with his guilt and not with his innocence, in fact, nothing could have been brought to our notice, except that during post mortem, the autopsy surgeon opined that victim suffered a homicidal death. It is true according to the evidence of autopsy surgeon PW/7, the victim died due to asphyxia following strangulation and the same was ante mortem and homicidal in nature. Even accepting the medical evidence as above, still the involvement of the appellant in the commission of such offence is yet to be decided. According to the co-villager of the appellant, the PW/2 Maniruddin Sk, both the appellants are residing separately and their houses are intervened by 50/60 houses. It is also his evidence the appellant, the husband Salauddin Sk @ Menta was suffering from leprosy and both of his hands were affected due to that disease and he used to reside at Bihar and engaged in a job of selling wigs. According to the said witness after the death of his wife, within 10/11 days the appellant was called from Bihar and he was at Bihar at the time of occurrence and not in the village.
This witness (PW/2) as also the another (PW/4) were never declared hostile by the prosecution although their evidence completely shattered the prosecution case on both counts and consequently, the defence case of innocence can very well be accepted thereupon. In this regard the two of the well-known decisions of the Apex Court be well referred, viz., Raja Ram vs. State of Rajasthan - 2005 SCC (Cri) 1050; Muktiar Ahmed Ansari vs. State
- 2005 SCC (Cri) 1037.
At this juncture, it be noted although it was the case of the prosecution the victim was regularly tortured and then was done to death but the evidence of the autopsy surgeon, shows besides some injuries around the ligature, no other injuries either external or internal was found on the dead body.
According to the PW/1, the key witness of the prosecution, when he reached the village where the matrimonial home of his sister is situated he found many persons assembled on the eastern side of "Kuyou" river and there he saw that the dead body of his sister was lying on the earth. A faint attempt was made from the side of the prosecution to take recourse to the provisions of section 106 of the Evidence Act and it was contended that when it was proved that victim died a homicidal death, it is for the husband and mother-in-law to explain as to how and under what circumstances she was killed and the silence of the appellant in this regard must be considered an incriminating piece of evidence against them to point out their guilt.
We are unable to accept the contention of the prosecution. It needs no debate the provisions of section 106 of the Evidence Act is attracted and onus shifts on the accused to explain under what circumstances the crime was committed, if certain facts are exclusively within the special knowledge of the accused and virtually is impossible for the prosecution to prove. In this case the prosecution has not led any evidence to show before the victim was found dead, she was in the company of the appellant and on the contrary it was the witness of the prosecution, PW/2, who disclosed while appellant no. 1 was living separately at a place intervened by 50/60 houses, the appellant no. 2 at the time of occurrence was at his place of employment at Bihar and not in the village and called to the village within 15/16 days after the incident still the prosecution has not disowned him.
We are, therefore, of the opinion, the prosecution has also failed to connect the appellants with the offence of murder of Najifa Bibi and the order of conviction passed by the trial court was not justified.
We find the trial court has noticed all the above infirmities in the prosecution case surfaced from the evidence of PW/2 and PW/4 still an order of conviction was recorded which in our considered opinion was neither reasonable nor justifiable and against the materials on record.
In the result, this appeal is allowed and order of conviction of the appellants on both the counts and the sentences imposed thereunder are set aside.
The appellants, who are in custody, be set at liberty, if not detained in connection with any other case.
The office is directed to send down the lower case records at once and to communicate this order to the trial court.
Urgent Photostat certified copy of this judgment be given to the parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree, (Malay Marut Banerjee, J.)