Calcutta High Court (Appellete Side)
Ruplal Mahato And Others vs The State Of West Bengal on 20 January, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon'ble JUSTICE SANJIB BANERJEE
And The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY C.R.A. No. 336 of 2007 RUPLAL MAHATO AND OTHERS
-VERSUS-
THE STATE OF WEST BENGAL
For the Appellants: Mr Himangshu De, Sr Adv.,
Mr Navanil De, Adv.,
Ms Ayantika Ray, Adv.,
Mr Sarthak Barman, Adv.
For the State: Ms Anasuya Sinha, Adv.
Hearing concluded on: January 16, 2017.
Date: January 20, 2017.
SANJIB BANERJEE, J. : -
It is more likely than not that these appellants, or some of them, committed the murder of the victim; but conviction requires firmer ground than mere suspicion and the tardy investigation in this case has failed to connect the appellants with the commission of the offence beyond reasonable doubt.
2. The appellants are the husband, two brothers of the husband and the parents-in-law of the victim. The victim was found throttled to death in the morning of December 7, 2000. The post-mortem report opined that the death was caused by the head and neck injuries; the neck injuries likely to have been caused by strangulation. The injuries were found to be ante- mortem and homicidal in nature.
3. A written complaint was lodged on December 7, 2000 by the father of the victim. He claimed that his daughter was given in marriage to the first appellant about seven years prior to the complaint. He alleged in his complaint that his daughter was subjected to physical and mental torture by her in-laws. The complaint also spoke of the victim having given birth to a female child in October, 1999, and the torture of the victim continuing unabated. The father apparently brought the victim to her paternal house for the occasion of Kali Puja in 2000 and she was taken back to her matrimonial home by her father-in-law on November 21, 2000. The complainant claimed that he came to learn of his daughter's death from Naru Mahato of the same village as the matrimonial home of the victim. The complaint recorded that the appellants "jointly killed my daughter by throttling on the last night of 6.12.2000."
4. In course of the inquest, the dead body was found on a string-cot with "10/12 thrashing-marks of wounds caused by nail by the two sides of trachea. Swab had been discharged." There were other injuries found on the body and marks of dry blood on the nose. The neighbours of the victim's in-laws reported to the police that the victim was regularly tortured, both physically and mentally. In the immediate opinion of some of the neighbours, the husband and his relatives had murdered the victim.
5. The investigating officer prepared a rough sketch-map of the place of occurrence. No care was taken in such preparation and a substantial part of the submission on behalf of the appellants is based on the improbability of the case run by the prosecution in the light of what appears from the sketch-map.
6. In his evidence in course of the trial taken up nearly six years after the incident, the father proved his written complaint and reiterated his allegation of the victim being tortured by her in-laws. He also referred to the injuries that he saw on the neck of the victim that were also noticed in the inquest report. In course of his cross-examination, he remained steadfast on his allegation of the in-laws torturing his deceased daughter; but he admitted that he had not complained in such regard even to the local panchayat members.
7. The mother of the victim corroborated the father's version of the constant torturing inflicted on the victim by her in-laws. However, like her husband, the mother's evidence appears to be confused on the question of how long the victim was married. She admitted in her cross-examination that she was illiterate.
8. A village acquaintance of the victim's father was examined as P.W. 3. He claimed that he was told once by the victim that she was subjected to torture "by her husband, her parents-in-law and her other matrimonial relations due to failure on her part to give birth of a child." He narrated that he accompanied the father of the victim to the place of occurrence and noticed marks of injury on the neck of the victim. In his cross-examination, he admitted that he had not been examined by the police in connection with the case at any point of time. Though he repelled the suggestions given by the defence, nothing of any significance comes out from his testimony.
9. Naru Mahato was examined as P.W. 4. Such witness was named in the complaint as having informed the victim's father of the incident. He claimed to be related to the father-in-law of the victim and alleged that "I have stated to the police that I have no knowledge how said Fulumoni died." The witness was declared hostile by the prosecution and, in course of his cross-examination, he disowned the statement attributed to him in the investigation report.
10. P.W. 5 was also declared hostile. In her cross-examination by the prosecution, she denied that she had informed the police that she and her husband, Naru Mahato, "went to the house of Ruplal on the said night and found that Ruplal sitting on the chest of his wife Fulumoni was pressing her throat by his hands when his wife was shouting saying 'ga ga' and ultimately she died and then I myself and my husband left the house of Ruplal."
11. Nothing much comes out of the evidence of the medical officer who conducted the autopsy. A brother and a brother-in-law of the victim were also examined and, apart from such witnesses claiming that the victim was subjected to torture at her in-laws', they could not throw any light of the incident as they may not have even been present to see the body of the victim at the place of occurrence.
12. The investigating officer testified that the victim was killed on the floor and "thereafter her dead body was lifted from that place and placed ... on a khatiya". He claimed that Naru Mahato and his father saw the incident and reported that after holding the inquest he had examined Naru Mahato and his wife Kalabati. However, as noticed earlier, both Naru and Kalabati Mahato turned hostile.
13. It is necessary, at this stage, to revisit the evidence of Naru and Kalabati Mahato in their cross-examinations by the prosecution upon such witnesses being declared hostile. Naru Mahato denied a suggestion that he had told the police in course of the investigation that his wife witnessed Ruplal sitting on the chest of the victim and trying to strangulate her to death. Similarly, Kalabati denied having told the police that she or her husband went to the house of the Ruplal on the fateful night and found Ruplal trying to throttle Fulumoni. Thus, from the drift of the suggestions given by the prosecution to Naru, it appears that Naru had apparently informed the police that his wife had witnessed the act of Ruplal strangulating the victim. Again, Kalabati fielded the relevant suggestion put by the prosecution by claiming that neither she nor her husband witnessed Ruplal throttling his wife. But the investigating officer did not refer to Kalabati being a witness to the incident. His clear statement was that Naru Mahato and his father saw the incident.
14. There appears to be a serious anomaly in the matter. The investigating officer testified that Naru had claimed to have witnessed the incident, but no suggestion may have been put to Naru as to whether he saw Ruplal trying to throttle the victim to death. A suggestion may have been put to Kalabati as to whether either she or her husband witnessed the incident, and even the details attributed to Kalabati in the statement given to the police were incorporated in the suggestion. But it was not the investigating officer's testimony that Kalabati had even claimed to have been present at the scene to witness what happened.
15. The only direct evidence is that the dead body was discovered with marks of strangulation. There is no doubt that the victim was brutally killed. Either Naru or Kalabati or both may have witnessed at least that part of the incident when Ruplal may have been throttling the victim. However, upon both Naru and Kalabati turning hostile and retracting from the statements attributed to them in course of the investigation, the prosecution has not been able to link the appellants to the commission of the offence beyond the pale of suspicion.
16. The trial court cited the following perceived incriminating circumstances to convict the appellants:
"1) the victim Fulu Mahato was admittedly given in marriage with one of the accused persons viz. Ruplal Mahato and after her marriage, she had been residing with her husband, Ruplal Mahato as duly married couple along with his relations in her matrimonial home;
2) the deceased was admittedly residing with the accused persons at the time when she met her unfortunate death;
3) the relation in between the victim and that of the accused persons was not at all cordial, rather stringent one. In fact, she was subjected to torture and cruelty by the accused persons;
4) there was no rope etc. having been found there which would have been used for committing suicide by the deceased;
5) the victim suffered unnatural death within 3 years of her marriage;
6) the unnatural death of the victim was neither accidental, nor suicidal, rather it was homicidal in nature as is established by cogent medial evidence;
7) the deceased had a baby on her lap and has had no immediate cause to put herself to such frame of mind to commit suicide;
8) none of the accused persons facing trial had sent any information of such unnatural death of the deceased to her parents;
9) the accused persons have not lodged any report at the P.S. regarding unnatural death of the victim, Fulu Mahato; and,
10) the accused persons inflicted torture upon the victim as she failed to give birth to any child."
The appellants severely criticise such grounds which, according to them, are mostly in the realm of conjecture. They refer to the mistake on facts that the victim died within three years of her marriage, though the complaint claimed that she had been married for seven or eight years. In particular, the appellants assert that Section 106 of the Evidence Act could not have been made the sole basis for conviction merely because the victim's body was found in the matrimonial house.
17. On circumstantial evidence and the degree of caution necessary in assessing the same, the appellants have placed the judgments reported at (2016) 10 SCC 298 (Nathiya v. State) and (1984) 4 SCC 116 (Sharad Birdhichand Sarda v. State of Maharashtra). The rules recognised in such judgments are too well known to call for any repetition.
18. On Section 106 of the Evidence Act, the appellants rely on a judgment reported at (2005) 11 SCC 133 (Murlidhar v. State of Rajasthan) and place paragraphs 21 and 22 thereof. It may be profitable to notice the principle laid down in Shambu Nath Mehra v. State of Ajmer [(1956) SCR 199] as quoted in the judgment:
"21. The judgment of Vivian Bose, J. in Shambu Nath Mehra v. State of Ajmer lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus ... :
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
19. A recent judgment of this court reported at 2016 (3) AICLR 205 (Cal) (Salema Bibi v. State of West Bengal) has also been placed where it was held that the burden of proof of the prosecution cannot be relieved merely by citing the rule embodied in Section 106 of the said Act.
20. In the state of the evidence it cannot be accepted that the guilt of the appellants stood established. To repeat, one or more of these appellants may have committed the offence; but when it cannot be ascertained beyond reasonable doubt as to which of them did so or the extent of involvement of the others in the commission of the crime, suspicion cannot be the basis for conviction. It is true that the victim was found dead in a house said to belong to the husband or the husband's family. But the sketch-map shows that there were several rooms in the house and, though it is normal to expect that the husband and the wife would have been together at night, there is no evidence of the husband being seen with the wife at any proximate time preceding her death. There is no evidence either of how the other members of the husband's family came into the room where the body of the victim was discovered. A better investigation may have brought out other material that could have thrown some light on the matter. Even though the ill-treatment of the victim by her husband and the husband's relatives appear to come out of the evidence to justify a motive for the crime, the mere existence of a motive cannot impel the omnibus conviction of the five appellants without any more to link them to the commission of the offence than the discovery of the body from their house.
21. Accordingly, CRA No.336 of 2007 is allowed. The order of conviction dated May 31, 2007 and the consequent sentence of June 1, 2007 are set aside. The appellants should be set at liberty without undue delay.
22. Copies of this judgment be made over as expeditiously as possible to the appellants and to the correctional home where they are lodged. The lower court records be sent down forthwith with a direction to the trial court to take immediate appropriate steps in accordance with law.
(Sanjib Banerjee, J.) I agree.
(Siddhartha Chattopadhyay, J.)