Calcutta High Court (Appellete Side)
Goutam Roy vs The State Of West Bengal on 19 June, 2019
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 333 of 2008
Goutam Roy
Versus
The State of West Bengal
For the appellant : Mr. P.S. Bhattacharyya
....Advocate
For the State : Mr. Saibal Bapuli, Ld. A.P.P
Mr. Bibaswan Bhattacharya
.....Advocates
Heard lastly on : 10.06.2019
Judgment on : 19.06.2019
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Jay Sengupta, J.:
1. This appeal is directed against the judgment and order of conviction dated 30.04.2008 and sentence 02.05.2008 passed by the Learned Additional Sessions Judge, 3rd Fast Track Court, Berhampore, Murshidabad in ST No. 18/June 2007:
Sessions Serial No. 338/2007, thereby convicting the appellant under Section 302 and 201 of the Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for one month for the offence under Section 302 of the Penal Code and to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for fifteen days for the offence under Section 201 of the Penal Code, both the sentences having to run concurrently.
2. On 18.12.2006 at about 15.40 hours PW 1 lodged a First Information Report with Berhampore Police Station alleging commission of offences under Sections 302 and 201 of the Penal Code against the appellant. PW 1 alleged that on 01.11.2006 onwards, he gave tenancy of the ground floor of his house on a monthly rent of Rs. 14,400/- to the appellant. From that day he was residing there with her wife (since deceased) and his minor daughter Pinki. The appellant told him that he had to stay there for the purpose of his job. The wife and daughter of the appellant were last seen in the house on 04.12.2006 at 15.00 hours. On 05.12.2006 at about 8.00 hours the appellant told PW 1 that his 3 father-in-law had passed away and he had to go there with his family. He said that he had no money and took a loan from PW 1. On 18.12.2006 in morning PW 1 went downstairs and behind the rented portion of the room he got a bad smell and found a fluid coming out from the rented portion. He informed the police over telephone. After breaking open the lock of the back door, the police found a deadbody of a woman in a decomposed state, lying in pitchboard box with LG TV written on it. On seeing the wearing apparels, PW 1 identified the body as that of the appellant's wife.
3. Investigation commenced. On 18.12.2006 PW 18, a Sub-Inspector of Police, held inquest over the deadbody of the victim in the ground floor of the house in the presence of witnesses PWs 1, 2, 3 and 4. He found the body in a highly decomposed state and could not understand whether there was any external injury. PW 16, a doctor in the Berhampore Hospital, held a post-mortem examination over the deadbody on 19.12.2006. A second post-mortem examination was conducted by PW 17 on 26.12.2006 in the Burdwan Hospital.
Several injuries were found on the body including on the neck. Fractures of some parts and bruises were also found on the deadbody. The doctor opined that the death was due to effects of strangulation by ligature, which was ante mortem and homicidal in nature. After completion of investigation, a charge-sheet was submitted against the accused by PW 18, the Investigating Officer. Subsequently, after receipt of the FSL report, he also submitted a supplementary charge-sheet. 4 On 19.06.2007 charges were framed against the appellant under Sections 302 and 201 of the Penal Code.
4. During trial, the prosecution examined as many as 18 witnesses to establish its case. The defence case was mainly a denial of the prosecution version.
5. From a careful perusal of the evidence on record, it transpires that PW 1 was the de facto complainant of the case. He was the landlord of the appellant. He supported the First Information Report lodged by him. He deposed that he had last seen the appellant on 05.12.2006 near the place of occurrence and the room was locked by the appellant while leaving. PW 1 was also a witness to the inquest and to the seizure of the cloth that he found tied around the neck of the victim. PW 2, a neighbour of PW 1, was a witness to the inquest and seizure. On 18.12.2006 he too got a bad smell from outside. Being a post-occurrence witness, he also saw the deadbody lying in the room. PW 3, another neighbour of PW 1, also had a bad smell outside the room. PW 4 was a neighbour and an inquest report witness. PW 5 was the 'dom' who took out the deadbody from the box at the instance of the police. He found a cloth around the neck of the damaged deadbody. PW 6 was another local post-occurrence witness. He found a liquid substance coming out of the room. The body was found inside the damaged box. He helped take out the body and remove it to the morgue. In the cross, he stated that the skeleton had come out of the body. PW 7 was the wife of the 5 landlord/PW 1. She last saw the tenants - the appellant, the victim and their daughter, on 04.12.2014. In the morning of 05.12.2013, the appellant came and told PW 1 that his father-in-law had passed away. As an immediate post- occurrence witness she saw the deadbody. The victim was wearing the saree that she had worn on 04.12.2007. In her cross-examination, she stated that the deadbody was taken out at 16.00 hours. There was no agreement or money receipt for the tenancy. PW 8 was a photographer. He went to the spot at 14.00 hours. He took some photos and videos. PW 9 was tendered in evidence. PW 10 was a law clerk who was a seizure witness for the victim's saree at the Police Station. He admitted that he used to go to the Police Station. PW 11 was the minor daughter of the appellant and the victim. She was declared hostile. She deposed that the victim had died by tying a cloth around her neck. She heard a noise in the adjacent room, went and found the victim hanging in the dining room. The appellant came and wept. After that the appellant took her to the houses of their relatives. In the cross-examination, she stated that the appellant had rebuked the victim for not making bed. PW 12 was a home guard. He was a seizure list witness for the seizure of the TV box. He carried the deadbody to the morgue. But he turned hostile and stated that he signed on the paper at the Police Station. PW 13 was a Police Constable who carried the deadbody from the morgue. He was also a seizure list witness. In his cross-examination, he admitted that the label of the "Alamat" did not contain his signature and the plastic container and other articles did not contain the case number. PW 14 was the appellant's sister who turned hostile. PW 15 was a law clerk. In the presence of 6 the photographer, he handed over thirteen videos and a cassette to the police. He was also a seizure list witness. PW 16 was the first doctor who held post-mortem examination at Berhampore on 19.12.2006. He observed that the body was decomposed and no injury could be found. A ligature mark of cloth was seen around the neck. In the cross-examination, he admitted that the document was a carbon copy. He opined that if one commits a suicide by hanging, such cloth mark around the neck was caused. PW 17 was the second post-mortem doctor. He was a specialized autopsy surgeon and commanded special pay from the government. He examined the deadbody at the Burdwan Medical College on 26.12.2006. He found several injuries on the deadbody including fractures. A continuous ligature mark was found on the neck. The body was decomposed. He found a plastic button in the neck of the deadbody. PW 18 was the Investigating Officer of the case. In his cross-examination, he admitted that the specific last seen together accounts were given by PWs 1 and 7 for the first time in Court and that he did not take any permission for the second post-mortem examination. In his examination under Section 311 of the Code the accused tried to give an explanation while answering question no. 4. But, he did not explain how the deadbody went inside the box.
6. Mr. P.S. Bhattacharyya, the Learned Advocate appearing on behalf of the appellants submitted as follows: Even before the First Information Report could be lodged, the investigation was started. He wondered why the door was broken open before the lodging of the First Information Report. There was no clinching 7 evidence to connect the button that was seized from the deadbody with the shirt belonging to the appellant as subsequently seized from the room. There was a long delay in the last seen together account. The minor child who should have been the best witness, significantly, turned hostile. Although PW 5 told about the existence of a cloth, PW 6 did not say anything about it. The prosecution could not find any motive for the murder of the victim. The examination under Section 313 of the Code was defective in as much as no questions were asked about the place and time of arrest of the accused or about the FSL report or about the evidence of the post-mortem doctor. It was submitted that the burden of proof always lay on the prosecution.
7. Mr. Saibal Bapuli, the Learned Advocate appearing on behalf of the State submitted as follows. As regards the FIR PW 1 stated that he found bad smell, saw a liquid coming out and therefore called the police. He had no occasion to know about the murder. The police came and broke open the door. Therefore, there is no question of investigation starting before the lodging of the First Information Report. PW 1 clearly supported his First Information Report during evidence. The circumstances clearly pointed towards the guilt of the accused. The appellant admitted tenancy. Even there was no cross-examination regarding the identity of the deadbody. Too much need not be read into the turning hostile of PW 11, the minor daughter of the victim and the appellant. As she was residing with the paternal grandmother, there was a very high chance of her being tutored. The subsequent conduct of the appellant in fleeing away from the 8 place of occurrence only acts as an additional link to the chain of circumstances pointing towards his guilt. Upon query by this Court, as regards the reason for having the second autopsy, it was submitted that in all probability it was due to the fact that no definite opinion was given by the first post-mortem doctor.
8. We heard the submissions of the Learned Advocates and perused the evidence and other materials on record so as to ascertain the correctness and propriety of judgment and order of conviction and sentence. The initiation of the case was not suspicious:
9. The appellant had borrowed some money from his landlord PW 1 and left after locking his portion. After a few days, one morning PW 1 found a bad smell and a fluid coming out of the tenanted portion. Naturally, he became worried and informed the police who came and broke open the door. After the deadbody was found, a formal First Information Report was lodged. This does not mean that the investigation preceded the lodging of the First Information Report. The prior intimation to police was only about a bad odour and a strange fluid coming out. PWs 2 and 3 too got the obnoxious smell. So, there is no suspicion whatsoever about the initiation of the case.
Last seen together:
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10. The landlord PW 1 last met the appellant in the morning of 05.12.2006 the day the appellant left. He deposed that he saw the appellant, the victim and their daughter on the previous day. The landlord's wife PW 7 too gave out a specific last seen together account that she saw the couple on the previous day. In fact, she deposed that the victim was wearing the same saree on the previous day that was subsequently found on her deadbody. It really cannot be argued that the last seen together account is far away in time merely because the deadbody was discovered much later. This was because the tenanted premises was kept locked by the appellant himself for all that long. The tenanted portion was under his exclusive control. Moreover, although PW 1 gave out his last seen together account about seeing the appellant and the victim on the previous day for the first time in Court, according to PW 18, the Investigating Officer, PW 7 did state to him that she saw the victim and the appellant on the previous day. It was only that she did not specify about seeing them on that day for the last time. PWs 1 and 7 had no enmity whatsoever with the appellant so as to lie on this issue. The deadbody was found after breaking open the room:
11. The police came and broke open the door of tenanted portion. The victim's deadbody was found inside in a damaged pitchboard box in a highly decomposed state. PW 5, a 'Dom' took out the deadbody at the instance of the police. PW 6 helped in this. There were several witnesses present during the recovery of the deadbody. Thereafter, the inquest was held on the deadbody by PW 18 in the presence of PWs 1, 2, 3 and 4.
10Seizure of a shirt button from the body and a shirt, subsequently:
12. During the post-mortem examination of the deadbody, a button of a shirt was found in the neck of the deadbody and was seized. A shirt purportedly belonging to the appellant was also seized from inside the room in question with a button ripped off. As per a forensic report, the button matched with the shirt. Although no expert was examined on this score, the report was a formal document prepared by an expert and could be exhibited as per Section 293 of the Code. PW 13, a constable who handed over the button to the Investigating Officer, did not find the button in Court. But, this is not much significant as the seizure list and the FSL Report were duly proved.
Subsequent conduct of the appellant:
13. Although fleeing from the place of occurrence per se cannot be a ground to convict an accused. Yet, in the present facts the appellant's attempt to flee and avoid the process of law can be treated as an additional link to the chain of circumstances appearing against him. If the appellant's purported explanation under Section 313 of the Code coupled with the evidence of the hostile minor daughter is to be accepted that the victim had committed suicide, then there was no reason for the appellant to be on the run, at least not for so long. Unsatisfactory explanation by the appellant:
14. In his examination under Section 313 of the Code, the appellant provided a rather incredulous explanation that after seeing his wife dead, he came away 11 from there with his daughter. He neither explained how then the deadbody could be found put in a box nor could explain the reason behind the taking of loan from the landlord. The place where the deadbody was found was where the couple stayed and it was totally under the control of the appellant. The facts and circumstances surrounding the death of the victim were completely within the appellant's special knowledge. In view of Section 106 of the Evidence Act, the appellant ought to have advanced a credible and cogent explanation, which he failed to do. This would act as an additional link in the chain of circumstances appearing against the appellant. On this, reliance is placed on the decisions of the Hon'ble Apex Court reported in Trimukh Maroti Kirkan Vs. State of the Maharashtra, (2006) 10 SCC 681 and Ganeshlal Vs. State of Maharashtra, (1992) 3 SCC 106.
Turning hostile of the minor daughter:
15. PW 11, the minor daughter of the couple would have been the best witness in this case. But, she also failed to explain as to how the deadbody could get inside the box. Her allusion to a suicide is totally belied by the medical evidence, especially the evidence adduced by the second post-mortem doctor PW 17.
Admittedly, she was staying at her paternal grandmother's place. The chance of tutoring and the urge to somehow save her father cannot be overlooked in this regard. Her evidence is very unconvincing indeed.
Medical evidence:
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16. The medical evidence adduced in this case is of utmost importance. The deadbody was recovered much later and was thus in a highly decomposed state.
PW 16, the post-mortem doctor at Berhampore failed to decipher much, except for the fact that there was a ligature mark on the neck. But, the Investigating Officer decided to go for a second post-mortem, presumably to get a clearer picture. The second post-mortem was conducted by PW 17, a doctor at the Burdwan Medical College. He specialized in this branch and was commanding a special pay from the government for conducting post-mortem examinations. He found several injuries on the deadbody, including fractures and bruises. According to him, death was due to effects of strangulation by ligature, which was ante-mortem and homicidal in nature. The medical evidence clearly supported the prosecution case and blunted the attempts of the appellant and her daughter PW 11 to foist a different story.
Motive:
17. Motive is indeed important in a case based on circumstantial evidence. The Investigating Officer ought to have explored the past by examining the relations of the victim. But, if there is other evidence to support the prosecution case, the mere failure to prove a motive cannot be fatal to the prosecution case.
Examination under Section 313 of the Code was not defective:
18. From the trend of cross-examination by the defence and from the examination of the accused under Section 313 of the Code, it was evident that 13 the accused/appellant had a clear idea about the charge he was facing and the evidence presented to support it. Evidence was taken in his presence. In such circumstances, not putting of questions as regards the FSL Report and the medical evidence may not be fatal for the prosecution case, especially when both the issues were, in a way, referred to under Section 313 of the Code when the accused was asked to respond about the second post-mortem doctor PW 17 recovering the plastic button in question from the throat of the victim while examining the deadbody.
The chain of circumstances:
19. The circumstances incriminating the appellant are, inter alia, the staying together of the couple in the rented premises, the last seen together accounts given by the landlord and his wife, the appellant fleeing away after locking the tenanted portion, the recovery of deadbody from the room that was exclusively under the appellant's control, the seizure of a shirt button from the deadbody and of the shirt without such button subsequently from the room, the post-
occurrence accounts regarding recovery of the body, the medical evidence confirming murder and the false and/or inadequate explanation given by the appellant. The chain of circumstances pointing towards the guilt of the appellant is thus found to be complete.
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20. The circumstances referred to above unerringly point towards the guilt of the accused. The prosecution thus has been able to prove its case beyond all reasonable doubts.
21. In view of the above, we do not find any illegality or impropriety in the impugned judgment and order of conviction and sentence passed against the appellant. Hence, the appeal is dismissed and the conviction and sentence are upheld.
22. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action.
23. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)