Calcutta High Court
State vs Manpiyari Bai on 23 November, 2005
Equivalent citations: 2006(1)CHN454
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT P.N. Sinha, J.
1. This appeal is directed against the order of acquittal passed by the learned Sessions Judge, A & N Islands, under Section 302 read with Section 34 of the Indian Penal Code (hereinafter called IPC) in Sessions Case No. 21 of 2000 (Sessions Trial No. 07 of March, 2004) thereby acquitting the respondent/accused.
2. The prosecution story, in short, is that one R. Ravindran Nair (P.W.I) lodged the First Information Report (in short FIR) at Campbell Bay Police Station on 28th April, 1998 at 7.45 p.m. to the effect that on the said date at about 5.30 p.m. Banu Ram's wife came to his house and told him that at about 3.30 p.m. her husband under the influence of liquor was assaulting her. She then pushed her husband Banu Ram (deceased) and he fell down and became unconscious. P.W. 1 then came to Paresh Ram's house and from there he informed the police station over telephone. Thereafter, P.W.1 and S.R. Tiwari came to the house of Banu Ram accompanied by Banu Ram's wife, the present respondent/accused. Coming at the house of Banu Ram he found that Banu Ram was lying unconscious in the second room of his house and there was wound over his chin with bleeding and there was stains of blood also on the neck.P.W.1 and S.R. Tiwari shook the hand of Banu Ram and found that his body was cool and they could realize that Banu Ram was dead. OB the basis of such FIR Campbell Bay P. S. Case No. 21 dated 28.4.98 under Section 302 IPC was started against unknown accused. After completing investigation the Investigating Officer (in short 10) submitted chargesheet against the respondent/accused and one Krishna Ram under Section 302/34 IPC. After commitment of the case to the Court of Sessions, the learned Sessions Judge framed charge under Section 302/34 IPC against both the accused persons named above. During pendency of the trial accused Krishna Ram absconded and case against him was filed for the present respondent/accused faced the trial. As already mentioned above, the learned Sessions Judge by his judgment and order dated 29th June, 2005 acquitted the accused and being aggrieved by, and dissatisfied with, the said order of acquittal the State has preferred the present appeal.
3. Mr. S.K. Mandal, learned Public Prosecutor, appearing for the State submitted that the prosecution case is based on circumstantial evidence and the circumstances cannot be ignored. The deadbody of deceased Banu Ram was found in his room and at that time his wife, the present accused and another accused Krishna Ram were present there. The deceased was last seen with the accused persons and the deceased was in the company of accused persons before his death. The defence could not give any explanation as to how deadbody of Banu Ram was found inside the house. From evidence, it transpired that the accused developed extra-marital relationship with the other accused Krishna Ram and husband of the accused Banu Ram protested against her illicit relation with the accused Krishna Ram and in order to remove Banu Ram the accused persons in furtherance of their common intention murdered Banu Ram.
4. Mr. Mandal also submitted that there was none in the house of deceased Banu Ram on 28.4.98 except the two accused persons against whom charge sheet was submitted. The learned Sessions Judge did not consider that the respondent/accused made extra-judicial confession before P W.1 coming to his house and informing him that she pushed her husband Banu Ram as a result of which Banu Ram fell down and became unconscious. It is quite natural that the accused while informing the said fact to P.W.1 suppressed the other fact that she and her paramour Krishna Ram killed Banu Ram. The evidence of P.W.9, the Executive Magistrate, who held the inquest on the deadbody of Banu Ram reveals that he found deep cut mark on the right side of chin and also noticed blood inside nose and throat of the deceased was swollen.
5. Mr. Mandal further submitted that evidence of post-mortem doctor is important as his evidence reveals that death was due to asphyxia as a result of forcible mechanical obstruction applied to the wind pipe in front of neck. The injuries found over the deadbody is suggestive of homicide. The doctor found blood inside the mouth and nose of the deceased and multiple fracture on thyroid cartilage. The medical evidence also establishes that the deceased was murdered. The learned Sessions Judge failed to appreciate the evidence of the important witnesses and the circumstantial evidence and committed error in acquitting the accused. The evidence and circumstances complete the chain of circumstances pointing to the guilt of the respondent/accused and her paramour behind the incident of murder of Banu Ram. Accordingly, the order of acquittal should be set aside and the accused should be convicted. In support of his contention Mr. Mandal cited the decisions in Nika Ram v. State of Himachal Pradesh , in State of U. P. v. M. K. Anthony and in Girija Shankar v. State of U.P. .
6. Mr. N. N. Nag, appearing as Amicus Curiae to help the Court for the respondent submitted that the evidence of Post-mortem Surgeon is conflicting and confusing and the Post-mortem Surgeon could not convincingly opine the cause of death. The doctor opined that death was due to asphyxia as a result of forcible mechanical obstruction applied to the wind pipe in front of neck. No weapon or instrument was shown to the doctor to confirm his opinion relating to forcible mechanical obstruction of wind pipe. The inquest made by P.W.9 was also bad and not in accordance with law. Evidence of P.W.9 reveals that at the time of entry into the room of the deceased he was alone and he remained in the inner room for about 20 minutes. He does not remember when the form of inquest was handed over to him. It suggests that when he held the inquest he was alone and such inquest report was not in accordance with law as it was done not in presence of witnesses. The circumstances and the evidence could not complete the chain to lead to the conclusive inference that it was none but the accused was behind the murder of Banu Ram: The learned Sessions Judge after appreciating the evidence properly acquitted the accused and there is no ground of interference by this Court. In support of his contention Mr. Nag cited the decision in Kanda Padayachi v. State of Tamil Nadu and Dinesh v. State of Haryana reported in AIR 2002 SC 2374.
7. We have carefully perused the evidence and materials on record and considered the submissions made by the learned Advocates of both the parties. In this case, the prosecution examined in all nine witnesses to prove its case viz. P.W. 1 R. Ravindran Nair (the informant), P.W.2 Smt. Gunwari Bara, P.W. 3 Dr. B. Ajit Kumar (Post-mortem Surgeon), P.W. 4 Smt. Phulwari Bai, P.W.5 Elango, P.W.6 C.B. Singh, P.W.7 S.B. Singh, P.W.8 P.P. Selvam and P.W.9 Sanjay Gihar. The FIR lodged by P.W.1 was marked Ext. 8. Ext.5 is the postmortem report, Ext. 8/1 is the formal FIR, Ext. 9 is the sketch map. The inquest report was marked Ext. 2 and one Panchnama was marked Ext.3. The seized articles including wearing apparels of the deceased and the accused and one 'Dah' were marked Mat. Exts.(I) to (VII).
8. Considering the evidence of the witnesses we find that there was no eyewitness of the incident and the prosecution case rests mainly on circumstantial evidence. It is well-settled law that in order to prove a prosecution case based on circumstances, there must be all the tell-tale circumstances established by the prosecution had made the chain of circumstances so complete that there was no escape from the conclusion that within all human probability, the deceased was murdered by none other but the accused. Such a view was expressed by the Supreme Court in Hardayal v. State of U.P. , and in many other decisions. If we carefully consider the evidence of the witnesses it would reveal that the respondent/accused came to P.W.1 and told him that her husband, the deceased Banu Ram was assaulting her when she pushed him and her husband became unconscious. P.W.1 thereafter went to the house of Banu Ram accompanied by Tiwari, Walter Minz and Tarsus and found that Banu Ram was lying on the floor and he found him dead. Very interestingly the prosecution did not examine Tiwari, Walter Minz and Tarsus. P.W.2 in her evidence stated that on the date of incident at about 11 a.m. while she was proceeding through house of Banu Ram she found quarrelling between Banu Ram and his wife. She noticed accused Krishna Ram delivered a 'jhola' to the respondent/accused and Banu Ram became furious and hit her and also slapped Krishna Ram. P.W.2 thereafter left that place and when she came back at about 4 p.m. she heard from mother of the accused that Banu Ram was dead.
9. Evidence of P.W.4 reveals that on 28.4.98 at about 11 a.m. there was quarrel between deceased and his wife and during the quarrel she heard Banu Ram stating to his wife that she had illicit connection with Krishna Ram. Thereafter, she went to the hospital for treatment of his daughter and when she came back from hospital at about 4.30 p.m. she found the present accused and Krishna Ram sitting in front of their house. Subsequently, she learnt that Banu Ram had expired. Evidence of P.W.5 does not reveal any material in favour of prosecution and, so also evidence of P.W.6 who is Head Constable. He received the information sent by P.W.1 over telephone relating to quarrel between respondent and her husband and pushing of deceased by the respondent and his becoming unconscious. He made a general diary receiving that information and subsequently he received the FIR. P. W. 7 prepared site plan of place of occurrence. P.W.8 is the Investigating Officer and P. W.9 is the Executive Magistrate who held the inquest over the deadbody of the deceased.
10. We are unable to agree with the views of Mr. Mandal, learned Public Prosecutor that statement of the present respondent/accused to P.W. 1 amounts to extra-judicial confession. In order to make a statement of accused extra-judicial confession it must reveal involvement of the accused in the incident and the statement must be inculpatory. The alleged statement of accused to P.W.1 that when her husband was assaulting her she pushed him and her husband became unconscious, in our opinion, does not amount to extra-judicial confession as it was not self-inculpatory. There is no such inculpatory statement of the respondent/accused in the instant case behind murder of Banu Ram and accordingly the alleged statement of accused to P.W.1 does not become extra-judicial confession.
11. We are also unable to accept the views of Mr. Mandal that as there was extra-marital relationship of the accused with Krishna Ram and as deceased protested it, the accused forming conspiracy with Krishna Ram to fulfil their common intention committed murder of Banu Ram. The evidence of P.W.4 does not prove extra-marital relationship or illicit connection of respondent/ accused with Krishna Ram. Evidence of P.W.4 only suggests suspicion of deceased on the character of his wife and suspicion cannot take the place of proof. In the present Sessions case, there was no convincing evidence at all to establish the fact that the respondent/accused had illicit relation with Krishna Ram and alleged statement of deceased heard by P.W.4 cannot prove that deceased had illicit connection with Krishna Ram.
12. The evidence of Post-mortem Doctor in our opinion is not convincing, as he opined that the injuries found over the deadbody is suggestive of homicide. Opinion of P.W.3 that deceased died of asphyxia as a result of forcible mechanical obstruction applied to the wind pipe in front of neck does not throw light before us as to what type of mechanical obstruction was applied and evidence in this respect is practically nil. No weapon was shown to the doctor to establish his opinion relating to death of Banu Ram by forcible mechanical obstruction. In this connection, the decision cited by Mr. Nag in Dinesh v. State of Haryana (supra) is quite apposite. In the reported decision the conviction of accused under Section 300 IPC was set aside and the Supreme Court observed that when the doctor appeared in the Witness Box neither the prosecutor nor the learned Judge presiding over the trial took care to show the weapons to him and solicit opinion of the doctor whether the injuries suffered by deceased would have been caused by any of the weapons exhibited in the Court. In this case one 'Dah' was seized but the said 'Dah' was not shown to the doctor to obtain his opinion as to whether any other injury found on the body of the deceased could have been caused by the 'Dah'. There is no doubt that Banu Ram died and he died unnatural death and was murdered, but scrutinizing the evidence, we find that there is no convincing evidence or circumstances to establish the prosecution case against respondent/accused.
13. The evidence of P.W.8 and P.W.9 also do not establish the prosecution case. Evidence of P.W.9 establishes that at the time of inquest he found injuries on chin of the deceased, blood in the nostril and throat was swollen. The IO (P W.8) seized one 'Dah' and other articles but the said seizures do not complete the chain of circumstances to lead to the irresistible conclusion that it was none but the accused who caused the death of deceased. The theory of last seen of the deceased with the accused is not always safe. Accordingly, in the present case, we are unable to agree with the views of the learned Public Prosecutor that as the deceased was last seen with the accused and one Krishna Ram, the accused is guilty of offence of murder. The circumstance under which the accused was found even after incident cannot be ignored. The accused came to house of P.W.1 to report about unconsciousness of her husband and spent some time with P.W.1. In FIR,P.W.1 mentioned that accused returned to her house with him, and Tiwari though in evidence P.W. 1 stated that after hearing the matter he asked her to go home. P.M. doctor (P.W.3) could not give approximate time of injuries of deceased. This his accused and the other accused Krishna Ram both were present till arrival of P.W.1 and P.W.6. After murder, this accused could have easily escaped but she did not. Mere finding of body of the deceased in his room in presence of this accused would not establish the prosecution case that, it was none but the accused who caused the murder.
14. In the present case, we find that there is no convincing evidence and circumstances to complete the chain of circumstances to lead to the conclusion that none but the accused was responsible behind the murder of Banu Ram. The decisions cited by the learned Public Prosecutor, in our opinion, are not properly applicable in the facts and circumstances of the present case. In this connection, we like to refer two decisions of the Hon'ble Supreme Court in Harendra Narain Singh v. State of Bihar , and in Sharad Birdhichand Sarda v. State of Maharashtra . In these decisions the Supreme Court laid down some guidelines or conditions which are to be followed by Courts in a murder case based on circumstantial evidence. It was clearly indicated by the Supreme Court that in a murder case based on circumstantial evidence if after appreciation of evidence two views are possible before the Court, one pointing to the guilt of the accused and another to the innocence of the accused; the Court should accept the latter view. In the present case, this principle is squarely applicable. It is true that Banu Ram was murdered and when he was murdered the present accused was present and another person namely Krishna Ram was also present. Prosecution could not produce before the Court any other evidence or circumstance to establish its case to complete chain of circumstances pinpointing to the guilt of the accused. Therefore, in this case only presence of accused at the place of murder by the side of deadbody and the story of presence of deceased lastly with the accused is not helpful to the prosecution to prove its case and the charge beyond all reasonable doubts. Two views are possible in the present case and accordingly the latter view i.e. innocence of accused should be accepted. The learned Sessions Judge made no mistake in this case by acquitting the respondent/accused.
15. Considering the entire evidence, circumstances and materials on record we find no ground at all to interfere with the findings of the learned Sessions Judge. There is no merit in the appeal, and accordingly, the appeal fails and is dismissed.
16. Send down the Lower Court Record along with copy of order to the learned Sessions Judge, A & N Islands at Port Blair for information and necessary action.
Ashim Kumar Banerjee, J.
17. I agree.