Calcutta High Court
Shambu Gowala Alias Jadav vs State Of W.B. on 6 September, 1999
Equivalent citations: 2000CRILJ1602
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. Both the Death Reference and the Appeal are being dealt with and disposed of by this judgment as they arise out of the same judgment of the trial Court, namely, Sessions Judge, Cooch Behar passed in Sessions Case No. 79/94. The learned Sessions Judge has by his impugned judgment and order convicted the appellant-accused Sambhu Goala alias Yadav under Section 302, I.P.C. and has sentenced him to death. He has also convicted the accused under Section 201, I.P.C. and has sentenced him to R.I. for seven years for such conviction. It may be mentioned here that the present appellant Sambhu and his mother Sita Goala were tried in the same trial. While the accused Sambhu was charged under Section 498-A, 302/34 and 201/34, I.P.C. his mother, the co-accused was charged under Section 498-A, I.P.C. only. The learned Trial Judge, however, acquitted both the accused persons in respect of the charge framed against them under Section 498-A, I.P.C. But as stated above the accused Sambhu was convicted and sentenced under Section 302 and Section 201, I.P. C. The trial Court has made the death reference for confirmation of death sentence. The accused Sambhu also has preferred the appeal against the conviction and sentence imposed on him by the trial Court.
2, The appellant-Sambhu married one Bulbuli alias Anita who was the daughter of the de facto complainant Smt. Sudharani, the informant who lodged the FIR on 21-3-88 at 5 p.m. at Kotowali P.S., Cooch Behar. It is stated by Sudharani in the FIR that her daughter Bulbuli was married in Magh, 1388 B.S. to Sambhu Goala, the appellant herein who was a hawker in trains and who constructed a house on the railway khas land and started living there with his wife. It is also the case in the FIR that Sambhu started torturing Bulbuli after one year of the marriage and suddenly in Chaitra, 1393 B.S. the complainant realised that her daughter and son-in-law Sambhu were missing from their house and they thought that perhaps they had gone somewhere and were waiting for their return and as they did not return even after one year they became suspicious and in the meantime the complainant's another son-in-law Tapan Talapatra informed her about three months back that he came across Sambhu and Sambhu told him that Bulbuli was staying in the house of his Meso, Misirlal Yadav in Gorakhpur. It is further stated in the FIR that as Misirlal used to work at New Bangaigaon, the complainant got in touch with Misirlal and also went to Misirlal's house at Gorakhpur but Bulbuli could not be traced out. It is also stated in the FIR that 'today', that is 21-3-88; the complainant's son-in-law went to Sitalabari Colony at Alipurduar and saw Sambhu, but no trace of Bulbuli was obtained . It is the prosecution case that Sambhu was caught there and taken to Alipurduar P.S. and subsequently police from Kotowali P.S., Cooch Behar went to Alipurduar P.S. and brought the accused Sambhu who confessed that he murdered his wife Bulbuli and buried her under the floor of the hut where he used to live at Cooch Behar, and (as) guided by Sambhu the police party and others went to that hut and on the showing of Sambhu earth of the floor of the hut was dug and a dead body, virtually consisting of only bones and hair without flesh was recovered by such digging of earth alongwith certain other articles including some wearing articles of Bulbuli. On completion of investigation police submitted charge-sheet and accordingly, as we have noted, charge was framed against the accused and trial was held and concluded as stated above.
3. We now proceed to discuss the evidence of witnesses. P.W. 1, Sudharani Dutta is the complainant who lodged the FIR. She is the mother of Bulbuli. In her evidence in 1997 she says that her daughter Bulbuli died 10 years back and she was given in marriage to Sambhu Goala about 15 years back. She further says that after marriage Sambhu and her daughter Bulbuli used to live at New Cooch Behar and in the family of Sambhu there used to live his mother, Bulbuli and another man named Goutam who was not related to Sambhu. She says that one year after marriage of Bulbuli with Sambhu she found none in their house. It is submitted on behalf of the appellant that this statement is inconsistent with the FIR version that the complainant realised in Chaitra, 1393, B.S. that Bulbuli and Sambhu were missing from their house. It, however, appears to us that the statement of Sudharani in her evidence that since after one year of the marrigae none was found in their house is the result of some confusion about the lapse of time and this in our opinion has no material bearing on the merit of the prosecution case which; as we will find, is supported by other reliable evidence. P.W. 1 says that they made search at different places for their missing daughter but to no effect and that her second son-in-law Tapan Talapatra who used to reside at Cooch Behar Town met Sambhu and wanted to know about Bulbuli and Sambhu promised to take him to Bulbuli but subsequently Sambhu escaped and did not meet Tapan again and then her another son-in-law Putul Burman got Sambhu at New Alipurduar and Sambhu was brought to Alipurduar P.S. where Sambhu confessed in presence of P.W. 1, her brother Sunil Das, Parasuram Jha, Putul Burman that he had killed Bulbuli and thereafter he buried her under the earth in his bed room at New Cooch Behar. She further says that then police from Cooch Behar town went to Alipurduar and brought Sambhu Goala to his house at New Cooch Behar where he used to reside and Shambhu pointed out a place inside his room and stated that he had buried the dead body of Bulbuli below the earth there. From her evidence it appears that a cot was placed at that spot and there was bed upon the cot. She says that police dug out the place and brought out the dead body of Bulbuli from below the earth. She further says that out of profound grief she left the place as she would be unable to bear the shock. She, however, says that she did not see the dead body of Bulbuli. She says that she reported the occurrence to Kotowali P.S. and Darogabak wrote down her verbal information and read over the same to her and thereafter being satisfied she signed the same. In her cross-examination she says that Sambhu used to live in the house which was at a distance of half bigha from the house of P.W. 1 intervened by four other houses and the distance being only about 15/16 cubits. She further says that Sambhu's house was in front of her house and there were houses around the house of Sambhu. She says that when her daughter was lost and not found on search she reported the matter to Kotowali police and G.D. entry was made. It has been submitted on behalf of the appellant that no such G.D. entry has been produced in the case. In her cross-examination P.W. 1 says that one month after lodging the FIR they came to know that Bulbuli had been murdered and her dead-body had been buried under the earth. It has been criticised by learned Advocate for the appellant that this falsifies the prosecution case itself inasmuch as the prosecution case is that the lodging of the FIR and recovery of the dead-body of Bulbuli by digging earth happened on the same date. In our opinion, in view of the overwhelming and reliable evidence about the date of recovery of the skeleton by digging earth, it is evident from the statement of P.W. 1 that they came to know that Bulbuli had been murdered one month after lodging the FIR is clearly the result of some confusion in the matter. In all probability what she meant to say in that context was that it was one month after lodging of the G.D. entry that they came to know about the fact that Bulbuli was murdered and her body was buried. Be that as it may, there is no doubt: that inaccurate statement of P.W. 1 in this respect does not falsify the recovery of the skeleton on 21-3-88. It is suggested on behalf of the defence to P.W. 1 in her cross-examination that there was no dwelling house of Sambhu at Cooch Behar on the railway land and that the house in question belonged to Sambhu's mother. P.W. 1, however, denies that suggestion and says that Sambhu himself constructed that house. In our opinion the question whether the house belonged to Sambhu or Sambhu's mother is not a fact of vital consequence in the matter. The fact remains that there was a hut in which Sambhu used to stay there.
4. P.W.2 Nagendra Burman was declared hostile by the prosecution. He is a resident of village Baishguri, New Cooch Behar, P.S. Kotowali. He says that the house of P.W. 1 Subharani is at a distance of 1km. from his house. He speaks about the marriage of Bulbuli with Sambhu. He was a member of the Panchayat Samity at the relevant time. He says that after marriage Bulbuli used to reside with her husband. He further says that police from Kotowali P.S. went to the house of Sambhu and on that day he came to learn about the death of Bulbuli and on hearing this he went to the house of Sambhu, and many other persons were present there and that on his arrival there he found that Sambhu was digging earth on the floor of his house to some extent and Sambhu brought out a skeleton of a human being. He, however, cannot say Whose skeleton it was. He says that police prepared a report on the spot and he signed thereon. He also identifies his signature. He says that the house of Sambhu was at New Cooch Behar Cooli Patty. Although this witness is declared hostile by the prosecution, he however, testifies to the fact of digging of earth by Sambhu in the house of Sambhu and consequential recovery of a skeleton from beneath the earth of the floor of the house of Sambhu.
5. P.W.3 Jitendra Das is the sister's husband of Bulbuli and is a resident of Baishguri, New Cooch Behar under Kotowali P.S. His house, he says, is at: a distance of 1 /1 1/2km. from the house of Sambhu. He says that after marriage Bulbuli met him on three occasions and at that time she reported that Sambhu demanded money from her which was beyond the capacity of her father to pay and for such inability of her father Sambhu and his mother had been assaulting and illtreating her. He says that 4/5 years after marriage of Bulbuli, Sambhu and other residents of that house disappeared and two months thereafter he met Sambhu in front of Cooch Behar Sadar Hospital and asked about the whereabouts of Bulbuli and Sambhu then gave them an address of Bihar in the district of Chhapra and stated that Bulbuli was there. He says that then he himself, his father-in-law, his mother-in-law, Parsuram went to that place in the district of Chappra but they did not find Bulbuli there. He also says that at the time of Panchayat Election he met Sambhu's mother in the house of Sambhu's Mesho Moshai when Sambhu's mother expressed her ignorance regarding the whereabouts of Bulbuli. He further says that then he lodged a missing diary about Bulbuli at the Kotowali P.S. His evidence is that subsequently they caught Sambhu at the back side of New Alipurduar Railway Station in a shop and Sambhu tried to flee away but they took Sambhu to Alipurduar P.S. and then on the instruction of Alipurduar P.S. they informed the matter to Kotowali P.S., Cooch Behar and police of Kotowali P.S. went to Alipurduar P.S. and brought Sambhu to Cooch Behar. His evidence shows that actually Putul, his Bhira-Bhai caught Sambhu at New Alipurduar Railway Station and many people gathered there. His further evidence is that from Kotowali P.S. police took him and Sambhu along with 4/5 motor vehicles to the house of Sambhu at Sibbari Colony. He further says that Sambhu was interrogated by the police and he stated to the police that he had embedded Bulbuli below the earth under the cot kept in his room after killing her and Sambhu pointed out that place to police in presence of all of them and then being asked by police Sambhu dug out that place with the help of a spade and after digging upto about 3ft. a bad smell came out and then the Government sweeper carefully dug out the remaining portion of the earth and brought out a skeleton with a red pala, a woollen lady's chadar and a leather chappal. He further says that hands and legs of the dead-body were folded. He also says that the description of the skeleton and the dress were given by Sambhu beforehand to the police and as per description given by Sambhu to the police about his wife's dress and position, police made a G.D. entry. He says that the atricles and objects which were found out after digging the earth were seized by police and police prepared a seizure list which was signed by him. He also says that his mother-in-law Subharani Dutta lodged FIR with the police in his presence and police took it down and thereafter his mother-in-law and he himself signed the FIR. In his cross-examination he says that after about 5 months from the date of missing they lodged a G.D. entry at Kotowali P.S. about Bulbuli. He also says in his cross-examination that he did not read the contents of the seizure list himself and next morning he went to Kotowali P.S. and signed the seizure list as instructed by the police. It has been submitted on behalf of the appellant that the evidence of this witness shows that the seizure list was not prepared on that day at the spot and that it was prepared subsequently on the next morning at the P.S. It has also been submitted on behalf of the appellants that the FIR itself was also not lodged at the time when it purports to have been lodged. In our opinion the matter will have to be looked into and considered in the background of the totality of the facts, circumstances and evidence adduced in the case and the matter cannot be decided only on the basis of an isolated, stray or confused statement of a witness examined 9/10 years after the incident. P.W. 3 also says, on being recalled by the prosecution, that the skeleton and other articles of Bulbuli were exhumed in his presence. He says that along with the dead-body there were leather chappal, chocolate colour woollen wrapper, saree, red pala and hairs of Bulbuli. He also identifies the recovered materials and says that these were used by Bulbuli and he has seen her to use those articles both in her house and when she used to visit the houses of others. It has been suggested to him in the cross-examination that they have procured those articles from the street and thereafter handed over same to the police in order to falsely implicate Sambhu which, however, he denies.
6. P.W.4 Parsuram Jha is a railway employee at New Cooch Behar. He says that formerly he and Sambhu used to reside at Sibbari Colony. He says that Sambhu Goala and Bulbuli were married about 18/20years back (obviously an inaccurate guess) and they lived together for 2/4 years after their marriage at Sibbari Colony and during that period Sambhu and his mother Sita Goala used to ill-treat and assault Bulbuli. He also speaks about the recovery of the skeleton after "digging earth. According to his evidence the S.D.O., Cooch Behar and Kotowali Police went there and Sambhu pointed out the place where he had buried his wife after killing her and thereafter Sambhu dug out the earth with the help of a spade in presence of him (P.W.4) and many others and a dead-body was brought out, but at that time there was no flesh on the skeleton and only the hairs were there and the skeleton was covered with a woollen wrapper and there were churis on the hands and hawai leather chappal on legs. He further says that hands and legs were in folded condition and a razor-like weapon was also found there. He further says that Sambhu identified the skeleton as that of Bulbuli and Sambhu stated that he had killed his wife and had buried her there. He signed the inquest report prepared by the police. In his cross-examination he says that the Ghar under which the dead-body was buried belonged to Sambhu and his mother Sita Goala and it was a Jhupri. He further says that one Bao was the tenant of the said Jhupri at the time of occurrence and he was a tenant there for 1/1 1/2 month only. It is evident that the reference to 'occurrence' in this connection means the occurrence of recovery of skeleton from that place by digging earth. P.W. 5 Tapan Talapatra is also a son-in-law of P.W.1 Subharani Dutta. He is a group D employee of M.J.N. Hospital, Cooch Behar Sadar. Bulbuli was his sister-in-law. He says that Bulbuli was given in marriage with Sambhu Goala about 8 years back. The witness was deposing in December, 1997. It is obvious that he was telling about the time of the marriage only by way of a rough calculation. There is no denial of the fact that Sambhu and Bulbuli were married. He says that Sambhu used to reside in Sibbari Colony which was situated at railway khas land at New Cooch Behar Railway Station and after marriage Bulbuli used to reside with her husband in her husband's house which was constructed by Sambhu on the Khas Land. He further says that in the family besides Sambhu and Bulbuli there used to live Sambhu's mother Sita Goala and another boy of the same age as of Sambhu whose name was Goutam and who was not related to Sambhu. He says that he learnt about torture on Bulbuli by the accused persons from his mother-in-law. He says that about five years after the marriage they found that the ghar of Sambhu Goala was under lock and key and Sambhu, his mother and Bulbuli all were absent from that locality. His evidence is that subsequently about three months thereafter he met Sambhu at M.J.N. Hospital and Sambhu informed him that for some inconvenience he and his family members had moved to Bihar and also gave an address which was Mistrial's Khamar Bari. He further says that Sambhu's father resides at Alipurduar Junction. He also speaks about lodging of information by his mother-in-law at Kotowali P.S., Cooch Behar. This must be a reference to the G.D. stated to have been lodged at the P.S. regarding the missing of Bulbuli, although the G.D. has not been produced in evidence. He says that sometime thereafter his elder Bhaira Jiten Das (P.W. 3), his Mama-Swasur, his mother-in-law and one Jha who deposed in the case caught Sambhu Goala at New Alipurduar Station and many people gathered there and then Sambhu Goala was handed over to Alipurduar P.S. and then on the instruction of police of Alipurduar his mother-in-law etc. came to Kotowali P.S. and informed them and then Kotowali police went to Alipurduar P.S. and brought back Sambhu therefrom. He says that on the next day he came to know from his mother-in-law that the dead-body of Bulbuli was dug out from the floor of the ghar of Sambhu. In his cross-examination he says that the village people know that the said ghar belongs to Sambhu but he has no documentary evidence regarding the ownership of that ghar. He says that Sambhu was a railway hawker and he used to sell tea in trains. He cannot say when the hawker friends used to visit Sambhu's house and he also does not know if Sambhu had any hawker friend. It has been suggested to him in his cross-examination on behalf of the defence that Bulbuli had fled away with the hawker friends of Sambhu which, however, he denies. He does not know whether any Babu Chowdhury was a tenant in that house for a pretty long time. He further says that he never visited the house of Sambhu Goala so long as Bulbuli had been living there.
7. P.W. 6 Maya Burman is an elder sister of Bulbuli. She speaks about the marriage of Bulbuli with Sambhu and says that after marriage Bulbuli used to reside at Sibbari Colony, New Cooch Behar with Sambhu and in that family Sambhu's mother Sita Goala also used to live. Her evidence is that for some time after the marriage the couple lived peacefully but thereafter Sita Goala and Sambhu Goala started assaulting Bulbuli and she learnt this from the neighbours when she came to her father's house. It may be mentioned here that P.W. 6 is a married sister of Bulbuli. She also speaks about catching of Sambhu at Alipurduar by Jiten Das and her mother. But that must be a hearsay evidence as she was possibly not present there at that time. She says about coming of police with Sambhu in his ghar (at Sibbari). She says that Sambhu pointed out to the police that he had buried his wife Bulbuli under that ghar and on being pointed out by Sambhu that place was dug out and the dead-body of Bulbuli was recovered from below the earth. She says that at that time she saw that the hands and legs of Bulbuli were in folded condition and her body was covered with a wrapper and there was leather sandals on legs and also red coloured pala on the hands of Bulbuli when the body was dug out. She identifies the chadar, saree, red-pala and leather sandals as belonging to her sister Bulbuli and says that she has seen Bulbuli to use those articles. In her cross-examination she says that she never visited the house of Sambhu and she does not know what happened in the house of Sambhu after Bulbuli's marriage with him. She, however, does not say that Bulbuli did not use to come to her father's house when she (P.W.6) used to go there. She cannot say on which day Bulbuli wore what saree and what chappal. She says that the earth of Sambhu's house was dug out at about 12-30 o'clock in the night. It is suggested on behalf of the defence to her that the articles, namely, pala, saree, chadar, chappal and hairs were not of Bulbuli which, however, she denies. It is also suggested to her on behalf of the defence that Bulbuli had fled away with her lover Sofi Akbar which also she denies. She also denies that one Babu Chowdhury resides in that ghar.
8. P.W. 7 Babu Chowdhury was declared hostile by the prosecution. He was an employee in a Tea Stall at New Cooch Behar Railway Station in 1987. Hostile though, his evidence, however, is that about 18/ 12years back (10/12 years!) one day he found that many persons were proceeding towards Sibbari Colony and on seeing that he also followed them and he went to a house which the people stated to have belonged to Sambhu and he found Sambhu and one sweeper digging earth in Sambhu's house, and some bones were brought out from inside the earth. He says that after seeing the bones he left the place and he had not seen anything more. In his cross-examination on behalf of the defence he says that he was not a tenant in the said house at the said time. He also denies the defence suggestion that he was a resident in the house of Sambhu Goala for a pretty long time and that he is the real perpetrator of the crime and he was deposing otherwise to cover up his own crime. P.W. 8 Bipul Das was also declared hostile by the prosecution. He also speaks about digging of earth of the ghar in his presence by Sambhu and recovery of skeleton as a result of such digging. He also says that as many people were present there, he could not observe the skeleton carefully. He further says that seeing the recovery of the skeleton he left the place. He says that police brought Sambhu there. It has been suggested to him in his cross-examination on behalf of the defence that he and Sambhu used to reside at that place and it was not his residence which, however, he denies. He further denies the defence suggestion that one Babu Chowdhury used to reside there. P.W.9 Jagadish Ghosh is Dy. Group Commandant of Home Guard. He says that on 5-3-88 he was attached to Kotowali P.S. in the same capacity and on that day he accompanied the officer-in-charge of Kotowali P.S. to village Baisguri and on that day by digging earth they brought out the bones of the victim from her house. He says that he brought those bones to M.J.N. Hospital accompanied by a challan handed over to him by the officer-in-charge of the Kotowali P.S. and the bones were handed over to the hospital morgue for post-mortem examination. In his cross-examination he says that the bones were packed in a gunny bag and the same was carried by a sweeper. It has been submitted on behalf of the appellant that this witness who himself is a Dy. Commandant of Home Guard demolishes the prosecution case inasmuch as he gives the date as 5-3-88 whereas the prosecution case is that the recovery of the skeleton was made on 21-3-88. In our opinion this contention is wholly untenable because, there is plethora of evidence that the recovery of the skeleton or bones was made in the night of the 21st March, 1988. Even the challan which bears the signature of P.W.9 would show that either it was mistake on the part of the P.W.9 to give the date as 5-3-88 or it was an accidental typographical mistake. It has been further contended on behalf of the appellant that the evidence of P.W.9 would show that by digging earth they brought out the bones and he does not say anything about the presence of Sambhu or digging earth by Sambhu. It is needless to mention, as would be evident, that this witness mainly confined his testimony to the carrying of the recovered skeleton to the hospital morgue and that is why he did not make elaborate statements regarding the other aspects of the incident over which there are other evidence in abundance.
9. P.W.10 Dr. S.C. Pandit is the doctor who held post-mortem examination on the bones. From his evidence it appears that the bones were brought and identified by the Dy. Commandant, Home Guard, Jagadish Ghosh (P.W.9) and the doctor held post-mortem examination on 22-3-88 at 13-10 hours. He says that he found human bones and most of the short bones were found destroyed and only the long bones along with skull bones were preserved for chemical analysis. He also says that the wearing apparel and bunch of long hairs were preserved and handed over to the escorting personnel. Definite opinion as to cause of death, age, sex, etc. was kept reserved pending chemical analysis of the bones preserved. He has also given a description of the bones preserved by him. He, however, specifically says that all the bones were of human being. In his cross-examination he says that he noted in the post-mortem report that death took place between six and eight months. Indeed there is no evidence as to exactly when the death of the victim took place. It is also evident that the opinion about the time when death might have occurred as stated by the P.M. doctor is only an approximate estimation. P.W. 11 Bhola Paswan was also declared hostile by the prosecution. He is a resident of Sibbari Colony at New Cooch Behar. He is a gangman of N.F. Railway. His house, he says, is at a distance of 4/5 bighas from the house of Sambhu Goala where Sambhu used to reside with his mother and wife Bulbuli.
10. P.W. 12 D.K. Maulick is an Inspector of Police. On 21-3-88 he was attached to Kotowali P.S. as S.I. of Police and Officer-in-Charge of the P.S. He recorded the verbal complaint of P.W. 1 on that day and started P.S. Case No. 14(3)/88 under Section 364/302/201/498-A, IPC. He says that he read over the statement to the maker of the FIR who admitted the same as correctly written and put her signature on the same. He took up the investigation of the case. He says that he arrested the accused Sambhu Goala from Alipurduar P.S. and took him to Kotowali P.S. and interrogated him about the occurrence. He says that Sambhu Goala stated that he along with two associates about 7/8, months back, inside his house at Sibbari Colony, killed his wife Bulbuli by cutting her throat with khur (razor) and thereafter he buried her body in the floor of the said hut and absconded. He further says that Sambhu stated that he would be able to lead them to the spot and show them her dead-body. How far such statements allegedly made by the accused-Sambhu to the Police Officer is admissible in evidence will, however, be discussed by us later. He further says that as the accused made statement towards recovery of dead-body of Bulbuli and the body was required to be disinterred by the Sub-Divisional Magistrate, Sadar, Cooch-Behar, he sent requisition to the Magistrate for taking action under Section 176, Cr.P.C. through S.I.N.C. Pal and S.I.L.K. Rana. His evidence shows that he arranged hazaks and other things and also arranged for a photographer. He says that being led by the Sambhu Goala, he (P.W. 12), D.N. Soren, Executive Magistrate, Cooch Behar Sadar, T.T. Lepcha, D.S.P. Crime, S.I.L.K. Rana, S.I.M.C. Pal, A.S.I., K. Lama, A.S.I.M. Khan, D.I.C. Jagdish Ghosh and force went to a thatched hut at Sibbari Colony in village Baisguri and the accused Sambhu stated to them to have buried his wife Bulbuli inside that hut about 7/8 months back. He further says that Sambhu Goala entered the hut in presence of the Sub-Divisional Magistrate, police and witnesses and identified the spot on the floor of the hut where he concealed the dead-body of his wife. He further says that D. Soren ordered the body to be disinterred and the portion of the floor of the hut was dug out by the accused Sambhu Goala. He also says that on disinterment the deadbody of a highly decomposed and mutilated human body with long hair and wearing saree was found and only bones remained and skull was visible. He also speaks about the presence of saree, chadar, a pair of chappal and a piece of broken red churi there. He says that in course of removal of the dead-body the bones were broken and the remaining bones were found to be broken. According to his evidence he prepared the inquest report to the dictation of D.N. Soren, Executive Magistrate and that was signed by D.N. Soren. We also get it from him that apart from the inquest report prepared by the Executive Magistrate, he (P.W. 12) also prepared another inquest report of the deceased there at that time. His evidence shows that photograph of the skeleton was taken and the articles found were all seized and he sent the disinterred skeleton to M.J.N. Hospital for post-mortem examination through Jagadish Ghosh, Dy. Group Commandant, Home Guard. He says that on 21-3-88 Sambhu Goala made statement to him at Kotowali P.S. which led to recovery of the dead-body of his wife Bulbuli and he recorded that fact in his case diary. In his cross-examination he says that he arrested Sambhu Goala at 6-30 p.m. at Alipurduar P.S. on 21-3-88 but he does not remember whether before leaving for Alipurduar P.S. he made any G.D. entry at Kotowali P.S. He says that he reached Kotowali P.S. along with Sambhu Goala at 8-15 p. m. on 21-3-88. He also says that the FIR was recorded by him at 5 p.m. on that day and he left for Alipurduar P.S. after recording the FIR. He further says that the informant did not state to him that Sambhu Goala was at Alipurduar P.S. He however says that after recording the FIR he had telephonic conversation with Alipurduar P.S. when he came to know that S.I.S.N. Subba had already arrested Sambhu Goala and kept him at Alipurduar P.S. He, however, did not record the statement of S.I.S.N. Subba under Section 161, Cr.P.C. He says that the room which was dug out was then occupied by one Babu Chowdhury as recorded in the inquest report. It may be noted here that this Babu Chowdhury was examined as P.W. 7 but he was declared hostile.
11. P.W. 13 M.K. Chettri, P.W. 14 Pijush Kanti Roy, P.W. 15 Biman Kr. Chanda and P.W. 16 Lalit Kr. Rana are all police officers. P.W. 16 Lalit Kr. Rana was also in the police party in the presence of which the recovery of the skeleton was made on 21-3-88. He says that he accompanied D.K. Maulik (P.W. 12), the then O.C. of the Kotowali P.S. to village Baishguri near Cooch Behar Railway Station at about 10-15 p.m. on 21-3-88. He says that besides other police personnel, the S.D.O. Sadar also accompanied the police party and the accused Sambhu Goala was also with them. He says that at the P.S. accused Sambhu told them that 7/8 months before, he had committed murder of his wife Bulbuli and thereafter buried her dead-body under the earth inside his living room and that he committed the murder of his wife with the help of a razor. He further says that Sambhu told them that if he was taken to that place he would show the actual place of burial, and then they went to the place where the accused Sambhu formerly used to reside and then Sambhu pointed out the place in presence of the S.D.O. Sadar and Sambhu started digging out the earth with the help of a spade as a result of which some human bones, one pair of chappal, torn piece of saree, broken churi, hairs of woman were recovered from inside the earth. It has been contended on behalf of the appellant that the recovered bones have not been produced in Court at the time of trial. In our opinion in view of the ample evidence on record about the recover of the bones it is inconsequential that the bones were not produced in Court at the time of the trial. In his cross-examination he says that before leaving Kotowali P.S. they made a G.D. entry where his name was mentioned as member of the police party. It has been submitted on behalf of the appellant that no such G.D. entry has been produced in Court. The learned Advocate for the appellant has taken us through the examination of the accused under Section 313, Cr.P.C. and has made comments on the merit of the prosecution case on the basis of the questions put to the accused by the Court while examining him under Section 313, Cr.P.C. It is needles to mention that the question whether the prosecution have been able to prove its case will have to be examined in the background of the totality of the facts, circumstances and evidence on record and not on the basis of any isolated question that might have been put to the accused while examined under Section 313, Cr.P.C.
12. As regards the documentary evidence it may be mentioned here that Ext. 11 is a report of Dr. B. Mazumdar, Head of the Department of Forensic State Medicine, North Bengal Medical College. According to that report the skull and the bones belonged to a female human being and they belonged to the same person aged about 17/18 years, but no definite opinion could be given as to the cause of death from the available body parts. Ext. 2/3 is the inquest report prepared by the O.C. of Kotowali P.S. Ext. 6 is the inquest report prepared by the SubDivisional Magistrate, D.N. Soren. It has been submitted on behalf of the appellant that the Magistrate D.N. Soren has neither been examined in this case or nor was he examined under Section 161, IPC.
13. We have elaborately discussed the evidence on record, both oral and documentary. The learned Advocate for the appellant contends that the FIR proved in this case is not reliable inasmuch as it is now doubtful whether it was lodged at the time when it purports to have been lodged. As we have seen, the prosecution evidence when considered in its entirety indeed does not leave any scope to doubt the genuineness of the FIR. The learned Advocate for the appellant has also submitted that the time of missing of the deceased as is indicated in the FIR does not exactly tally with the prosecution case sought to establish by evidence. In this connection it is only to be mentioned that the FIR was lodged quite a long period after the deceased Bulbuli and her husband, the accused Sambhu were detected to be missing form their house and, therefore, the period for which they were missing as mentioned in the FIR might not have been very exact, but for that reason there is no reason to throw away the prosecution case which is otherwise established by cogent evidence. It has been also submitted by the learned Advocate for the appellant that in this case though two inquest reports were prepared, one by the Executive Magistrate who is stated to have been present at the time of digging out of the skeleton and the other by the Police Officer, yet the Executive Magistrate has not been examined in this case and, therefore, the inquest report prepared by the Executive Magistrate should not be taken into consideration. The inquest report prepared by the Magistrate is indeed a public document. However, even if the said inquest report is not taken into consideration, yet there is another inquest report which has been prepared by the Police Officer who has been examined in this case. It has been also submitted on behalf of the appellant that the razor which is stated to have been recovered along with the skeleton was not sent for forensic examination. In our opinion that by itself is inconsequential in view of the other evidence on record in support of the prosecution case which we have discussed elaborately. The learned Advocate for the appellant has also criticised that the deposition of P.W.9, the Deputy Commandant of Home Guard is very cryptic and does not support the prosecution case and also he has given entirely a different date. We have already discussed that the date appearing in the deposition of P.W. 9 must be a result of some mistake on the part of the witness or an accidental typographical mistake, and indeed there is plethora of evidence, as discussed, as to the date on which the skeleton was recovered by digging earth of the floor of the hut in which formerly the accused and his wife used to reside together as husband and wife. We have already mentioned earlier that P.W. 9 mainly confined his testimony to the carrying of the recovered skeleton to the hospital morgue and that is why he did not make elaborate statement regarding the other aspects of the incident regarding which there is evidence in abundance. It has also been contended by the learned advocate for the appellant that along with the skeleton one woollen chadar was also recovered by digging out earth which would suggest that the burying of dead-body must have taken place in winter season. The recovery of the woollen chadar, in our opinion, is not necessarily inconsistent with the core aspect of the case of the prosecution. It is not uncommon that there are places where even during rainy season some people may find it comfortable to wear chadar at times. It has been also contended on behalf of the appellant that it has not been satisfactorily proved by the prosecution that the articles recovered along with the skeleton were the articles used by the deceased Bulbuli. We are, however, not convinced by this contention. We have seen that both P.W. 3 Jitendra Das, the husband of Bulbuli's sister and P.W.6 Maya Burman, the sister of Bulbuli have identified the recovered articles as the articles used by Bulbuli. It is true that although P.W.6 Maya Burman says that the recovered articles belonged to her sister Bulbuli as she has seen her to use those articles, in her cross-examination she says that she never visited the house of Sambhu. But that does not mean that May has not seen Bulbuli elsewhere outside their house or in the house of her mother P.W. 1 Sudharani Das whose house is situated in neighbourhood of the house where Bulbuli and Sambhu used to reside and it is, therefore quite probable that Maya has seen Bulbuli to use those articles which are wearing articles even without going to the house of Bulbuli. That apart as we have seen P.W.3 also has identified the articles as those used by Bulbuli. It has been submitted on behalf of the appellant that the recovered bones were not seized by the police. In our opinion that is inconsequential inasmuch as we have seen hat the bones were sent almost immediately after recovery for post-mortem examination and in fact post-mortem examination was also held thereon. It has also been contended on behalf of the appellant that it is in evidence that some ether person was also living in that hut alongwith Bulbuli and the accused Sambhu. In our opinion even if that be so, that does not necessarily exclude the culpability of the appellant's role in the matter in view of the facts, circumstances and evidence in the case. That the skeleton and other articles were recovered by digging earth of the floor of the hut in the night of 21 st March, 1988 is established beyond doubt by the evidence adduced by the prosecution in the case. Even the evidence of the hostile witnesses P.W.7 Babu Chowdhury and P.W. 8 Bipul Das also support the prosecution case regarding digging of earth by Sambhu and recovery of bones. That Bulbuli and Sambhu used to reside in that hut is also amply established by the evidence adduced by the prosecution including the evidence of P.W. 1, the mother of Bulbuli whose house is situated in the neighbourhood of that hut where Sambhu and Bulbuli used to reside together. It is also an established fact that Sambhu and Bulbuli were husband and wife. The medical and forensic report, establish that the skeleton recovered is the skeleton of a female. The recovery of articles including chadar, chappal etc. along with bones by digging the floor of the hut where Bulbuli and Sambhu used to reside and the identification of those articles by P.W.3 and P.W. 6 as the articles which Bulbuli used to wear also establishes beyond reasonable doubt that the skeleton which was recovered by digging earth along with those articles was the skeleton of the deceased Bulbuli who was inexplicably untraceable for quite a long time past. Sambhu, the husband of Bulbuli with whom he was residing in the hut was expected to give same suo motu information and plausible explanation as to how and why Bulbuli was missing while she was staying with him, but he did not consider it necessary to give any suo motu information or explanation in the matter or even to inform the parents. Oh the contrary, as we have seen some suggestions were given on behalf of the defence to some of the prosecution witnesses that Bulbuli had fled away with some other person. Had that been so Sambhu would have contemporaneously informed the parents of Bulbuli and other relatives about the same but he did not do that. On the contrary, as we have seen, when the relatives of Bulbuli came across Sambhu and confronted him about the whereabouts of Bulbuli, Sambhu gave misleading information to them that she was somewhere in Bihar which was also found to be false. The whole conduct of Sambhu Who is none else but the husband of Bulbuli and with whom she was living strongly indicates, if we do not say conclusively indicates, the culpable involvement of Sambhu in the matter of sudden disappearance or should we say evaporation of Bulbuli. That Bulbuli was murdered is also established by the fact that her dead-body along with articles used by her were buried under the floor of the hut where she was living with her husband Sambhu.
14. Evidence on record which we have discussed also clearly establishes that the recovery of the skeleton by digging earth of the floor of the hut was made pursuant to the statement made by Sambhu himself and as we have seen in fact Sambhu not only pointed out the spot but also dug earth of the spot, as a result of which the skeleton of Bulbuli was recovered from that place. It appears from the evidence of the P.W. 12 D.K. Moulick, the officer-in-charge of the P.S. concerned that Sambhu stated that he along with his two associates about 7/8 months back killed his wife Bulbuli by cutting her throat with razor inside his house at Sibbari Colony and thereafter buried her body in the said hut and absconded. P.W. 12 further says that Sambhu also said that he would be able to lead them to the spot and show them her dead-body and it is also in evidence that pursuant to such statement of Sambhu and in fact on being led by Sambhu the police party went to the hut and the skeleton was recovered by digging earth. It is of course true that the whole of the statement of Sambhu made to the police is not admissible in evidence. The statement of Sambtm that he and his two associates killed Bulbuli by cutting her throat with razor is not admissible in evidence as the same is a confession made to Police Officer while in the custody of such officer and is, therefore, hit by Section 25 and Section 26 of the Evidence Act. However, Section 27 of the Evidence Act says that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of the Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. In other words so much of the statement of the accused as relates distinctly to the fact thereby discovered will be indeed admissible under Section 27 of the Evidence Act. In the present case, although the statement of the accused to the police that he and his associates killed his wife will not be admissible in evidence, yet the other part of his statement that he buried the dead-body in the hut will be admissible in evidence under Section 27 inasmuch as such statement had led to the recovery of the dead-body from that place by digging earth and that happened at the instance of the accused Sambhu.
15. The learned Advocate for the appellant has referred to the Division Bench decision of this Court in Panchu Gopal v. State in support of his submission that since the alleged statement of Sambhu to the police leading to recovery of the skeleton by digging earth was not recorded in writing, the same is not admissible under Section 27 of the Evidence Act. We, however, think that the law on the point is now settled and the Supreme Court in Suresh Ch. Bahri v. State of Bihar has taken into consideration the disclosure statement of the accused even when the same was not recorded in writing. Even the said Calcutta decision does not say that the disclosure statement is inadmissible in evidence. The question is rather of reliability of evidence regarding such disclosure statement. In our present case, we find no sufficient reason to discard the prosecution evidence regarding the disclosure statement made by the accused Sambhu to the police which led to the recovery of the skeleton. We, therefore, accept the prosecution evidence that the accused Sambhu made statement to the police that he buried the dead-body of Bulbuli under the floor of the hut and this part of the statement is admissible in evidence under Section 27 of the Evidence Act inasmuch as such statement had led to the recovery of the skeleton. The learned Advocate for the appellant has also referred to the decision of the Supreme Court in State of Punjab v. Bhajan Singh AIR 1975 SC 259 : 1975 Cri LJ 282. In the said case the circumstantial evidence was suffering from a number of infirmities and the doctor was unable to find the cause of death because the dead-bodies were in decomposed state and in the facts and circumstances of that case it could not be held that the death of the persons whose bodies were recovered was homicidal. It is needless to mention that the question whether the chain of the circumstances in a particular case is so complete as to establish the charge beyond doubt indeed depends upontiie facts and circumstances of the particular case. We have already noted the circumstances obtaining in the present case, namely that the deceased Bulbuli and her husband, the accused Sarnbhu were residing together as husband and wife in a hut in the neighbourhood of the house of Sambhu's mother-in-law P.W. 1 and suddenly they disappeared from that hut without leaving or giving any information and remained untraeed and even thereafter when Sambhu could be contacted he gave misleading and false information about the whereabouts of Bulbuli. Even at the time of trial, a different version is projected on behalf of the defence that Bulbuli fled away with one boy she loved which, however, has not been at all proved. Moreover, if it were so Sambhu would have contemporaneously informed his other in-laws about that fact which he did not do. The evidence also clearly establishes that the skeleton was recovered by digging earth of the floor of the hut in which previously Sambhu and his wife Bulbuli used to reside. It of course also appears that the mother of Sambhu and another boy also used to reside in that hut with them, but that is not of any material consequence in the present context. The recovery of the skeleton was made by digging earth which was partly done by Sambhu at the first instance. That the skeleton was a skeleton of a female body has been established by medical and forensic evidence. It has also been proved that the articles recovered along with the skeleton by digging earth were the articles used by Bulbuli. Having regard to the facts and circumstances there is not even an iota of doubt that the skeleton which was recovered by digging earth from that hut was the skeleton of the dead-body of Bulbuli. The very facts that the skeleton was buried under the floor of the hut where Sambhu was living with his wife, and Sambhu was thereafter seemingly unconcerned about the disappearance of his wife as is indicated by the fact that he did not give any information of his own accord to his mother-in-law or other in-laws about the disappearance of Bulbuli and rather gave false and incorrect information about her when he could be contacted, clearly slfow that his involvement was there in burying the dead-body of his wife under the floor of his house. It also cannot be imagined in the circumstances that Bulbuli died a natural death. Had that been so there would have been no occasion or necessity of burying her secretly in the floor of the house where she was living with her husband. The very fact that the dead-body was buried secretly under the floor of the hut, clearly establishes that she was murdered first and then secretly buried. Had the death been natural or accidental, there would have been no necessity to bury her dead-body secretly tinder the floor of the hut, since she was living in that hut with her husband. The conduct of the husband being what it was, the irresistible conclusion is that her husband who was staying with her in that hut had a culpable hand, may be with or without assistance or association of others, in mudering Bulbuli and secretly burying her in the hut itself. The circumstances are themselves sufficient to complete a chain which irresistibly leads to the conclusion that the accused Sambhu, the husband of Bulbuli had a culpable involvement in murdering and burying her there. The statement made by the accused to the police that he buried the dead-body of Bulbuli inside the hut which led to the recovery of the skeleton of the deadbody from that place and which statement is, therefore, admissible under Section 27 of the Evidence Act is also another piece of evidence, which in our opinion, lends a stamp of credence to the other circumstantial factors discussed by us establishing the guilt of the accused Sambhu in the matter of murdering Bulbuli and burying her dead-body inside the hut. Conversely, the statement of the accused Sambhu which is admissible under Section 27 of the Evidence Act receives support about the truth of the same from the other circumstances established in the case. We, therefore, hold without any hesitation that the appellant Sambhu was rightly convicted by the trial Court under Section 302, IPC as well as under Section 201, IPC.
16. As we have seen, the learned trial Court has sentenced the accused Sambhu to death for his conviction under Section 302, IPC and has also sentenced him to R.I. for seven years for his conviction under Section 201, IPC. So far as the sentence for conviction under Section 201, IPC is concerned we are of the opinion that no interference is necessary. Now coming to the question whether the sentence of death as awarded for the conviction under Section 302, IPC should be confirmed, we have to note that the exact and immediate circumstances associated with commission of the murder are not on record although we are convinced from circumstances that Sambhu was culpably involved in the commission of the murder. The learned trial Judge has recorded in his judgment inter alia that he felt that the shadow of the victim was roaming inside the Court room and was crying for justice. In our opinion in making such observation the trial Court has become slightly imaginative and sentimental. Looking at things in that way, that is possibly so in case of every murder. We are afraid, we do not have in this case sufficient factual or circumstantial materials or indications that could satisfy us that it was a case which would definitely come within the category of 'rarest of rare cases'. We are rattier of the opinion that in this case death sentence should be substituted by life imprisonment and that will serve the cause of justice. Accordingly while maintaining the conviction under Section 302, IPC, we set aside the death sentence imposed by the trial Court and direct that the appellant-accused do suffer life imprisonment for his conviction under Section 302, IPC. The conviction under Section 201, IPC and the sentence imposed by the trial Court for the same is, however, maintained. In the result the Death Reference is rejected. The appeal is also dismissed subject to modification of sentence as noted above.
Malay Kumar Basu, J.
17. I agree.