Calcutta High Court
State Of West Bengal vs Hari Ramalu on 3 March, 2004
Equivalent citations: 2004(2)CHN438, 2004CRILJ2659
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an appeal preferred against the order of acquittal passed by the learned Additional Sessions Judge, 6th Court, Midnapore in ST No. VIII of February, 1996 on 28.01.97.
2. The miniaturised version of the prosecution is that on 21.08.94 at about 15:45 hrs. on receipt of an information from the SDPO, Haldia regarding the death of Sunita Ramalu (35 years), wife of Sri Hari Ramalu, I.A.S., Chief Executive Officer, Haldia Development Authority, P.S. Durgachak, District Midnapore, who used to stay at his residential bungalow at Basudevpur, P.S. Durgachak with his wife and two minor daughters -- the eldest being Niki, aged about 7 years, the de facto complainant S.I. Kamal Bairagya had been there within ten minutes, found the dead body of Sunita in the first floor south-west room lying on its back with some marks of injuries, on a cot. On receipt of a written information about unnatural death of Memsahib from one Vivekananda Roy, cook of the said bungalow, on the same date, the same was forwarded to the police station for starting an U.D. case. Inquest over the dead body was held by an Executive Magistrate who noticed blood coming out from nostrils and mouth, ecchymosis on the chest beneath the right shoulder, right lower jaw and near the right chin. On query by the Executive Magistrate, Hari Ramalu informed that his wife had an accidental fall in the attached bathroom at the dawn of 21.08.94. The dead body was sent for P.M. Examination. The Autopsy Surgeon found six external and internal injuries viz. head injury, major injury of liver, one haematoma on the right broad ligament and two other superficial abraded wounds over face - all injuries being confined to the right side of the body and were anti-mortem in nature which might have been inflicted following hit with some hard and blunt objects over the areas concerned. Injury Nos. 5 & 6 are generally possible following direct hit with sufficient pressure over the area. The injury to the liver is sufficient to cause death within a very short time. As the nature of death was not clear from the above opinion, a few queries were made to ascertain whether the death was homicidal in nature and the reply indicated that the said injuries were not possible by a single fall in the bathroom.
3. During investigation it was revealed that relation between the accused Hari Ramalu and his wife was not good. On 20.08.94 (Saturday) at about 20:30 hrs. the accused took dinner with his wife and two daughters being served by the cook Bibek Roy. Both accused and the victim Sunita picked up quarrel over some issues and the accused gave several kicks and pressure on the abdomen of his wife, for which she sustained several internal and external injuries including rupture of liver and a large haematoma on the broad ligament extended upto uterus, Groaning sound was heard from the bungalow on the night of occurrence and the incident took place between 20:30 hrs. on 20.08.94 and 6/6:30 hrs. on 21.08.94. The accused was all along present with the members of his family at his bungalow which is well protected and guarded round the clock by the watchmen of P.H.E. On the next morning at about 11:00 hrs. the maid-servant Aloka Sahu came to the bungalow for normal daily work and came to know from Niki that her mother had expired, followed by her seeing the dead body on its back on the cot in the bedroom and asking the accused about the cause of death, but the accused kept quite. Similarly, at about 11:45 hrs. while Mangal Singh, driver of the office car of the accused, on coming to learn about the death of Sunita from Niki asked the accused about the cause of death, the latter did not make any response. The accused did not make any hue and cry at the time of incident nor made any attempt to seek medical aid for his wife though the bungalow's telephone was in order. The accused after committing murder of his wife gave a concocted story of accidental fall of his wife in the bathroom which was ruled out by the opinion of the Autopsy Surgeon. He deliberately concealed the evidence of murder and avoided police arrest from the morning of 28.08.94 i.e. just after registering the case of murder against him. Hence, he was charged under Sections 302/201 I.P.C.
4. The defence case, as spelt out from the evidence of PWs. 1, 20 & 26 and as contended by the accused during his examination under Section 313 Cr. P. C., is that his wife had an accidental fall in the bathroom on the night of occurrence resulting in her death. His cook Bibek Roy requested him to come to the bathroom as Memsahib fell down there and he with the said Bibek removed her from bathroom and laid her on the cot.
5. 27 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence and after considering the facts, circumstances and materials on record, the learned Court below found the accused not guilty and as such acquitted him of the charge under sections 302/201 I.P.C.
6. Being aggrieved by and dissatisfied with the said order of acquittal, the State has preferred the present appeal.
7. All that now requires to be considered is whether the learned Court below was justified in passing the said order of acquittal.
8. To start with, the present case hangs purely on circumstantial evidence --circumstances being two-fold viz. (1) the victim was last seen together with the accused and (2) abscondance of the accused immediately after starting of the P.S. case No. 58/94 dated 27.08.94 under Sections 302/201 I.P.C. against him on receipt of reply to the queries on the P.M. report from the Autopsy Surgeon.
9. Mr. Safiullah, learned P.P. on drawing Court's attention to the evidence of PW. 3 (guard), PW. 4 (driver), PW. 5 (supervising guard), PW. 7 (temporary visitor), PW. 12 (Finance Officer), PW. 14 (guard), PW. 20 (cook cum mali) & PW. 21 (guard) and on referring a decision reported in 2003 SCC (Cr.) 1569, at the outset, contended that barring the victim wife, there were only three members in the bungalow viz. accused husband & two minor daughters, the eldest being Niki aged about 7 years, on the night of incident i.e., between 20:30 hrs. on 20.08.94 & 6/6:30 hrs. on 21.08.94 and the bungalow was well protected and guarded round the clock by the watchmen, and this fact alone unerringly points towards the guilt of the accused and there should be no escape from the conclusion that none but the accused committed the crime of murder in the absence of any explanation on his behalf as to how his wife died, particularly when it is the specific opinion of the Autopsy Surgeon that all the injuries are not possible by a single fall in the bathroom. Mr. Ashish Sanyal, learned counsel for the respondent, on the other hand, on referring to the evidence of PW. 9 (Autopsy Surgeon) contended that it is a case of homicidal death has not been established at all nor the aforesaid decision as referred to by the learned P.P. has any manner of application in the present case, the facts and circumstances of the same being quite different.
10. Now, before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactory established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt. If these circumstances can be explained by any reasonable hypothesis, then the accused must have the benefit of the hypothesis . When a case rests entirely on circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established and not 'may be established', (2) the circumstances should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused and the facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty but they should exclude every possible hypothesis except the one to be proved and (3) there must b? a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused .
11. In regard to the first circumstance above i.e. deceased last seen with the accused, ordinarily the fact that accused and the deceased were last found together and failure of accused to explain disappearance is a circumstance pointing to murder by accused, but this fact alone is not enough to find guilt (AIR 1979 SC 1620). In other words, the fact that the accused and the deceased were found together does not clinch the issue.
12. Here, almost all the vital witnesses viz. PW. 2, PW. 3, PW. 4, PW. 5, PW. 7 & PW. 20 relating to the first circumstance above were declared hostile.
13. The evidence of PW. 3 & PW. 5 who were on night shift duty reveals that the said bungalow is situated within a railing and the compound of the P.H.E. is bounded by a brick wall. The evidence of PW. 1 shows that there are three rooms, two bathrooms and one dining space in the first floor of the bungalow. It is the evidence of PW. 3; PW. 4, PW. 5, PW. 7 & PW. 20 that the accused with his wife and two children used to reside in the first floor. PW. 3 who were on night shift duty with PW. 5, PW. 14 & PW. 21 did not see any person to enter into or to come out of the bungalow on the night of 20.08.94. P. W. 14 & P. W. 21 cannot recollect any incident of the night of 20.08.94. PW. 2 (maid-servant) who had been to the bungalow at about 10/10.30 a.m. for washing clothes, heard about the death of the victim. On entering into the first floor bathroom she found her lying dead there and there was none in the first floor at that time. She informed about the said death to P. W. 15 (guard) who was on duty at the main gate. From whom she heard about the death of the victim has not been disclosed. She cannot recollect whether the doors were open or closed. According to the evidence of PW. 20 (cook cum mali) in cross-examination, Sahib and Memsahib used to sleep in two separate rooms which are not inter-connected. He used to prepare tea in the ground floor and serve it on the first floor. They used to rise in the late hours of morning on Sunday as there was no office. On Sunday after completion of his garden work he supplied tea to Ramalu Sahib 5/10 minutes before 10.00 a.m. in the first floor. Sahib was sleeping at that time and he woke him up before supplying tea. Sahib went to bathroom and washed his hand and mouth. At that time he again went to the ground floor and came back to the first floor with tea. He first saw the dead body of Memsahib in the bathroom and when he informed about it to Sahib who was taking tea in another bedroom, he threw up the tea, came to the bathroom immediately within and called Memsahib 2/3 times but she did not reply. Thereafter Sahib checked the body of the Memsahib by touching her mouth etc. and told that Memsahib had expired. He caught the leg side and Ramalu Sahib the head side and they removed the dead body from bathroom to bedroom. On the face of the above evidence, it cannot be said that the victim and the accused slept together on the fateful night or the victim was last found together with the accused.
14. That apart, it is the evidence of PW. 8 (M.O.) that on being requested by S.D.O. & S.D.P.O., Haldia (PW. 10), he had been to the quarters of Ramalu Sahib, saw his deceased wife but could not ascertain the cause of death and suggested for her P.M. examination. PW. 6 (Deputy Magistrate & Collector) held inquest (Exhibit 7) over the dead body of the victim which was lying on a cot, found blood coming out from mouth and nostrils, ecchymosis by the side of the right eye near the ear, on the right side just above the chin & on the right chest and discharge of semen on the vagina. He instructed O.C., Durgachak P. S. to send the dead body to the morgue for P. M. Examination for ascertaining the cause of death. That on query by the Executive Magistrate, Hari Ramalu informed that his wife had an accidental fall in the attached bathroom at the dawn of 21.08.94, as deposed by PW. 1, though does not find place in the testimony of PW. 6, has been reflected in the Inquest Report (Ext. 7). PW. 9 held P. M. Examination (Ext. 10) over the dead body of the victim at about 12.00 hrs. on 22.08.94 and found slight rigormortis in lower extremities, whole face stained with blood which was not easily washable, on cleaning, blood from nostril & mouth, post-mortem lividity bluish in colour on the dependent part i.e., on the back and following injuries : (1) abrasion of irregular size, red in colour, roughly 1/2" X 1/2" situated 1" lateral and slightly downwards from the lateral angle of right eye, (2) very small abrasion roughly circular in size situated over the lower margin of lower jaw 1" lateral to the chin on right side, red in colour, (3) one small ecchymosis of roughly 1" in diameter situated over the right clavicular line 1 1/2" below clavicle, (4) sub-dural haemorrhage on the right side at a place over the junction of frontal and parietal bone at the level of hair line, (5) rupture of liver right lobe involving the convex of surface and inferior border (major injury), (6) a large haematoma in the broad ligament of right side extending upto uterus. Uterus was about 24 weeks in size when cut open --a male foetus of about 24 weeks size with normal cord and placenta.
15. In his opinion, there was head injury, major injury on liver, one haematoma in the right broad ligament and two other superficial abraded wound over face, and all these were confined to the right side of the body and anti-mortem in nature which might have been inflicted following hit with some hard and blunt object over the area concerned. Injury Nos. 5 & 6 were generally possible from direct hit with sufficient pressure over the area so as to involve the mentioned intra-abdominal organs. Injury of the liver is sufficient to cause death within a short period.
16. He gave answer (Ext. 9) pointwise to the queries made by O.C., Durgachak P.S. in writing. Injury No. 5 may be caused by giving fist & blows with force and also by kick. Time of death may be within 24 to 36 hours from the time of P. M. Examination. Age of the injury coincided from the time of death. Blood from nostril & mouth may be due to head injury i.e. injury No. 4. Liver can be ruptured without any external injury, and he did not find any external injury in this case. Injury No. 6 may be caused due to direct hit with force over the area concerned. The injury may be caused by fall twice or thrice on any hard and blunt object, but not in a single fall. Death may be possible by injury No. 4 or 5 or 6 alone in the ordinary course of nature.
17. In cross-examination, he deposed that injuries 1 to 3 may be caused by fall on rough wall. He knows seraj blood which means blood coming out from nose and mouth of the dead body after death without having any injury. He searched for the cause of blood in the mouth but could not detect it. The injury of the liver may be caused by fall on the corner oval size of the commode. He found bludder empty. Round ligament is placed within the broad ligaments, and if by strike the injury on the broad ligament is caused, normally injury on the extended uterus is expected. He did not find any injury on the uterus or on the membrane sack. He did not take any decision regarding the cause of death i.e. whether it was accidental or homicidal or suicidal nor noticed any defence injury in the entire body of the deceased. In other words, there is no such opinion that it was a homicidal death. So, his evidence is not helpful as to the cause of death.
18. On referring to the above opinion of Autopsy Surgeon and cross-examination of PW. 1 that north of 'G' is wall, Mr. Sanyal advanced argument contending that when the bludder was empty and all the injuries were in the same line on the right side, the possibility of the victim's (who was pregnant for about 24 weeks) accidental dashing against the wall after getting up on passing urine and then fall on the commode & floor resulting in those injuries cannot be ruled out which virtually lend support to the defence story. He further contended that the father-in-law of the accused had no complaint against the accused and as such he did not ask S.D.P.O. to lodge any F.I.R. as may be evident from the evidence of PW. 26.
19. Learned P. P. on referring to the evidence of PW. 10 that when they wanted to know about the incident from Mr. Ramalu he kept quite and of PW. 12 that when he asked Ramalu Sahib about his health followed by query about the welfare of madam, he did not reply which is buttressed by PW. 11, next argued that such conduct on the part of the accused to remain silent speaks of high volume which may be taken into account in judging the guilt of the accused. Mr. Sanyal, learned Counsel for the respondent, on the other hand, contended that when he lost his wife suddenly, he could not be expected to give reply to each and every question due to bewilderness and shock which was quite normal and natural. As a matter of fact, a person in such circumstance may react in his own peculiar way. Some may be stunned, may become speechless and stand rooted to the spot. Some may become hysteric and start wailing etc. Prosecution is to prove its case, and it cannot gain strength from the conduct of accused or from absence of explanation given by accused. So, silence of accused is of no consequence. Nevertheless, in the case on hand, it is the specific evidence of PW. 11 that when they reached the bungalow, Hari Ramalu was very upset. Similar is the evidence of PW. 12. PW. 19 when saw Mr. Ramalu for the first time at his quarters, he was found perplexed. PW. 26 after his arrival at the quarters found Mr. Ramalu very much upset and on being asked, he told that his wife had expired. When he wanted to enquire about the cause of death, he told that his wife fell down. He was with tears and he brought him down on the ground floor as he was crying. So, the above evidence do not suggest any abnormal conduct or behaviour on the part of accused nor mere silence on his part at one time or the other is a circumstance which will give rise to the holding that the accused had committed her murder.
20. The motive of accused is immaterial if the occurrence is proved (AIR 1976 SC 1932). But in cases where only circumstantial evidence is available, at the outset, one normally starts looking for the motive and opportunity to commit the crime. If the evidence shows that the accused had a strong enough motive and had the opportunity of committing the crime and the established circumstances of the record considered along with the explanation, if any, of the accused exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all probability the crime must have been committed by the accused and he may safely be convicted on circumstantial evidence (AIR 1972 SC 54). In the present case, the relation between the accused and the victim was very good, as is evinced from the evidence of PW. 7, PW. 20 & PW. 26. So, no enmity or ill relation between the accused and the victim having been established, the motive of the accused to commit the crimes does not stand, as motiveless malignity militates against the natural human conduct.
21. As regards abscondance, mere abscondance or disappearance of the accused by itself cannot form the basis of conviction. It is no evidence by itself and it may only lend weight to other evidence . Even innocent person may when suspected on grave crime be tempted to evade arrest, such being the instinct of self-preservation . When a finger of false accusation is raised, an innocent person may behave like a guilty one to avoid a false charge or harassment. Here, according to the prosecution case, the accused absconded and on 03.10.94 on his surrender before the Court of learned S.D.J.M., Tamluk he was remanded to J.C. PW. 24 who took charge of investigation of Durgachak P. S. case No. 58 dated 27.08.94 from O.C., Durgachak P. S. and visited the bungalow searched for the accused at possible places which is attached to bungalow but he could not be traced out. He made over charge to C.I. (PW. 25) on 28.08.94 for further investigation. At what time he searched for the accused is not clear. P. W. 25 unsuccessfully searched for the accused on 29.08.94 and on 31.08.94 he prayed to the Court for issuing WA against him. The incident took place between 20.30 hrs. on 20.08.94 & 6/6.30 hrs. on 21.08.94. It is the evidence of PW. 4 (driver) that he went to Calcutta with the accused and his two children in the morning of 28.08.94 and thereafter he did not find him as C.E.O., Haldia. In other words, so long the accused was there. Mr. Sanyal, learned Counsel for the respondent on referring to the above evidence submitted that in connection with an urgent piece of business his client had to go to Bombay where on coming to learn about starting of a specific case against him, he obtained anticipatory bail from the Bombay City Sessions Court and thereafter he came down to Midnapore and obtained an order of extension of the above anticipatory bail from the Court of learned Sessions Judge, Midnapore for a limited period and since his prayer for further extension was refused, he unsuccessfully moved before this Court for anticipatory bail followed by his surrender before the Court of learned S.D.J.M., some of which are matters of record and so his said temporary absence from the station for a few days can in no way be said to be abscondance, and there appears to be some force in such contention. However, in the absence of any other evidence, such temporary absence of the accused is not a ground for holding him guilty for commission of the alleged crime.
22. Before parting with the record, it is worthwhile to point out that two most important ingredients out of three of an offence under Section 201 IPC are that (1); the accused knew or had reason to believe that such an offence had been committed.& (2) the accused caused evidence thereof to disappear with the intent of screening the offender from legal punishment or had given any false information respecting the offence. There is no law which casts a duty on a criminal to give information which would incriminate himself. Secondly, the language used in Sections 201 & 202 does not suggest that the sections would apply to a person who has committed an offence. Thirdly, the phrase "knowing or having reason to believe that an offence has been committed" clearly indicates that the actual culprit is a person other than the one who knows or has reason to believe that an offence has been committed, as was observed by the Apex Court in the case . In other words, the language of the said Section does not suggest that the Section would apply to a person who has committed an offence. In this connection, the case may well be referred to. So, there was no scope for framing charge under Section 201 I.P.C. against the accused in this case.
23. In the premises, in the light of the above discussion, it cannot be said that the aforesaid circumstances are such which cannot be explainable on any other hypothesis nor the circumstances taken collectively can be said to have formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. As such, there appears to be no material to interfere with the order of acquittal passed by the learned Court below.
24. Accordingly, the appeal be dismissed on contest without any cost in the circumstances. The order of acquittal passed by the learned Court below is hereby affirmed.
25. Let a copy of the judgment along with L.C.R. be sent down to the learned Court below.
Nure Alam Chowdhury, J.
26. I agree.