Calcutta High Court (Appellete Side)
Kusum Mondal & Ors vs Swadhin Mondal & Anr on 24 April, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl.No.8 Sdas/as/tkm IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Manojit Mandal C.R.A. 475 of 2017 Kusum Mondal & Ors.
-Vs-
Swadhin Mondal & Anr.
For the Appellants : Mr. Partha Sarathi Bhattacharyya .. Advocate
Mr. Debangan Bhattacharjee .. Advocate
For the State : Mr. Madhusudan Sur .. Ld. A.P.P.
Mr. Manoranjan Mahato .. Advocate
Heard on : 24.04.2019
Judgment on : 24.04.2019
Joymalya Bagchi, J. :-
Supernatural forces were blamed for the death of a housewife. However, pre- varicating witnesses resiling from their earlier stance and indifferent investigation sounds the death knell for the prosecution case.
The prosecution case as alleged against the appellants is to the effect that on 6th September, 2004 at about 6:00 A.M. the victim-housewife, Madhuri Mondal was found dead with her eyes uprooted in the banana garden adjoining the homestead of the appellants. She had been married to Sunil Mondal about two and half years ago and was residing at her matrimonial home at the time of occurrence. Chaitanya Mondal (since deceased) and Kusum Mondal (appellant 2 no.1 herein) were her parents-in-law while Sukumar Mondal and Suklal Mondal @ Pancha (absconding accused) were her brothers-in-law. Beni Madhab Mondal (grandfather of Sunil Mondal) had gifted land which was cultivated by him. Other family members exerted pressure for transfer and joint enjoyment of the land. It is alleged that Madhuri was unwilling to such arrangement. As a result, she was subjected to torture and ill-treatment. Under such circumstances, behind the homestead of the appellants in the early hours of the fateful day her mutilated dead body was recovered in the banana garden. The matter was reported to Sadhin Mondal (PW16), brother of the victim. He along with other family members rushed to the spot and found that the eyes of the victim-housewife had been uprooted. Her ears had been cut and there was a ligature mark round her neck. He heard from local people that the accused persons claimed that the victim- housewife had been killed by a ghost. PW16 suspected the appellants for the murder of his sister and lodged FIR resulting in registration of Jiaganj Police Station Case No. 51 of 2004 dated 6th September, 2004 under Sections 498A/302/201/34 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed against the appellants. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the learned Additional Sessions Judge, Lalbagh, Murshidabad for trial and disposal. As Suklal Mondal @ Pancha had absconded and Chaitanya Mondal had expired, charges were framed against the appellants under Sections 498A/302/201/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 21 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgment and order dated 17th December/19th December, 2013 passed by the learned Additional Sessions Judge, Lalbagh, Murshidabad in Sessions Trial No. 1 of May, 3 2009 [Sessions Case No. 45/2008] convicting the appellants for commission of offence punishable under Sections 302/201/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Sections 302/34 IPC and to suffer rigorous imprisonment for six years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Sections 201/34 IPC; both the sentences to run concurrently. However, by the selfsame judgment, appellants were acquitted of the charges under Section 498A IPC.
Hence, the present appeal.
Mr. Partha Sarathi Bhattacharyya, learned advocate appearing for the appellants argued there is no direct evidence connecting the appellants with the murder of the victim-housewife. Circumstances relied on by the prosecution have not been proved and even so they do not unerringly point to the guilt of the appellants. Dead body of the victim-housewife was recovered from a place which was freely accessible to all and evidence has come on record that the victim- housewife resided in a separate room with her husband namely, Sunil Mondal. No forensic report with regard to presence of human blood from the seized articles was produced in the instant case. Motive for commission of crime is vague and by no stretch of imagination the husband could have shared the motive with other appellants to the housewife. Hence, the appeal is liable to be allowed.
On the other hand, Mr. Madhusudan Sur, learned Additional Public Prosecutor along with Mr. Manoranjan Mahato, learned advocate appearing for the State submitted that the victim-housewife was residing with the appellants at her matrimonial home at the time of occurrence. In the early morning of 6.9.2009 dead body of the victim was found in mutilated condition in the banana garden 4 adjoining the homestead of the appellants. No explanation is forthcoming from the appellants with regard to the circumstances in which the victim suffered brutal death. Appellants were exerting pressure upon the victim-housewife for joint enjoyment of the land which had been gifted to her husband by his grandfather. They had floated a false plea of murder by ghosts. Hence, the chain of circumstances pointing at their guilt is fully established. Accordingly, the appeal ought to be dismissed.
From the evidence on record as well as the submissions made at the bar, it appears that the prosecution case is based on circumstantial evidence.
P.Ws. 4, 5, 16 and 17 are the relations of the deceased.
P.W. 16, Sadhin Mondal, is her brother and de facto complainant. He deposed that around 6 a.m. they received information that dead body of their sister was lying on the banana garden behind her matrimonial house. They were informed by the neighbour of the appellants that her sister had been killed by ghosts. They rushed to the banana garden and found marks of injuries on the throat of her sister. They noticed that her eyes had been uprooted and ear cut. He deposed two years and five months prior to the incident Madhuri was married to Sunil. Sunil had been gifted a piece of land and money by his grandfather. Other in-laws were unhappy and wanted that the said gifted property be shared jointly. Madhuri did not agree to such proposal and was subjected to mental and physical torture. As the dead body of Madhuri was discovered in the garden behind the house of the accused persons he suspected that they had a hand in the murder. He had heard from Madhuri that his mother-in-law threatened her that she would uproot her eyes whereupon Madhuri had threatened that she would ruin the family. He lodged written complaint scribed by Kartick Chandra Mondal, his uncle 5 (P.W. 10). He signed on the inquest report. His evidence is corroborated by the other bothers viz. Nikhil Mandal (P.W. 4) and Gora chand Mandal (P.W. 7).
P.W. 5, Kamala Mandal, mother of the victim, also supported the evidence of her sons, as aforesaid.
P.W. 19, Dr. Tapash Kumar Das, held post mortem examination over the body of the victim and found the following injuries:-
"1. Both eyes of the victim were enucleated from the eye cavity by sharp weapon.
2. Lower half of right ear including lobule missing, cut by sharp cutting weapon.
3. Well defined transverse continuous ligature mark just below the thyroid cartilage.
4. Bruises in the subcutaneous tissue.
5. Extravassation of blood in the neck muscles.
6. Fracture of right corner of the hyoid bone."
He opined that the death of the victim was due to cardiac respiratory failure due to asphyxia and strangulation which is ante mortem and homicidal in nature. He proved the post mortem report marked as 'Ext.-7'.
From the aforesaid evidence it appears that the victim Madhuri was married to Sunil Mondal two years and five months prior to the incident. She was residing with her husband at her matrimonial home. Other appellants viz. Kusum and Sukumar are her mother-in-law and brother-in-law respectively. Sunil had been gifted land and money by his grandfather, Beni Madhab. In-laws of Madhuri including appellant nos. 2 and 3 insisted that the gifted property be shared jointly. Madhuri did not agree. As a result, she was subjected to ill treatment at her matrimonial home. Finally on 06.09.2004 her mutilated dead body was recovered from the banana garden adjoining to the homestead of the appellants. Post 6 mortem doctor opined that the housewife suffered asphyxia death due to strangulation.
However, the prosecution case which is based on circumstantial evidence has suffered a jolt as the neighbouring witnesses namely, P.W.s 1, 2, 6, 11, 12, 13, 18 have turned hostile and have not supported the prosecution case.It may be profitable to recount relevant parts of their evidence in précis.
P.W. 2, Swapan Mandal, admitted his signature on the seizure list relating to seizure of earth and lungi in front of the house of the appellants Sukumar and Pacha (absconding accused) as well as seizure of earth from the place where the body was recovered, he did not support the prosecution case that he had seen the accused persons taking something towards their garden. On the other hand, in cross-examination, he claimed that there was cordial relationship between the couple.
Similarly, his wife Pabitri Mandal, (P.W.3) also did not support the prosecution case and was declared hostile. She, however, deposed that on the night the victim was residing at her matrimonial home and had not gone out to listen "Manasa Play" which was organized in the village.
P.Ws. 6 and 13 who were cited as witnesses to the seizure of 'gamcha' from a bamboo bush near the house of the accused persons, turned hostile and did not support the prosecution case. They, however, admitted their signatures on the seizure list.
Another neighbour Dijen Mandal (P.W. 11) also retracted from his previous statement that he has seen the appellants carry a heavy object out of their house in the night.
7
P.W. 7, Gora Chand Mandal, deposed that he had informed the police after hearing the incident and such information was diarised by P.W. 21 at the police station.
Subsequently, on receiving written complaint from P.W. 16, P.W. 20 (I.O.) commenced investigation in the instant case. He came to the place of occurrence around 7.25 a.m. He held inquest over the dead body (Ext.11). Subsequently he requisitioned assistance of SDO, Lalbagh to conduct magisterial inquest over the body. Executive Magistrate held inquest over the body marked as "Exbt.-12". Thereafter he sent the dead body for post mortem examination through head constable. He prepared rough sketch map on the place of occurrence marked as "Exbt.-13". He also prepared another sketch map of the place of occurrence with index i.e. house of Sukumar and Suklal alias Pacha marked as "Exbt.-14". He prepared another rough sketch map of the place of occurrence marked as "Exbt.- 15". He could ascertain during investigation that victim was killed in her room and her dead body was dragged to the room of Sukumar and Suklal and thereafter body was thrown into the banana garden. He seized blood stained earth and printed lungi with blood stains under a seizure list marked as "Exbt.-2". He also seized blood stained earth where the body was detected marked as "Exbt.-1". He also seized a red coloured gamcha from the back of the house of the accused persons. He seized a brass metal kerosene lamp from the room of the deceased marked as "Exbt.-4". He identified the articles in the Court. He submitted charge- sheet. In cross-examination, he stated that he had sent the blood stained lungi and blood stained earth along with FSL blood of the deceased for chemical examination. He, however, did not receive any report in that regard.
Lack of support from the neighbouring witnesses, as aforesaid, leaves the court to rely on the opinion of the investigating officer P.W 20 alone with regard to 8 the manner and course in which the incident occurred. It is trite law that opinion of investigating officer with regard to the manner in which the crime was committed is not substantive evidence. Most of the neighbouring witnesses have resiled from their earlier statements and have not supported the prosecution case to establish a vital link in the chain of circumstances i.e. the appellants had been seen carrying a heavy object from their house in the night of occurrence.
In the absence of cogent evidence proving the aforesaid fact, I am constrained to hold the chain of circumstances sought to be established by the prosecution against the appellants is broken. The situation is further aggravated by non-production of chemical report of seized earth and 'lungi' to establish that they were stained with blood of the deceased or at the least human blood. Absence of legally admissible and cogent evidence with regard the aforesaid facts severly impairs the prosecution case and one is left with a lingering grave suspicion against the appellants which howsoever strong cannot take the place of proof beyond reasonable doubt.
It is also important note that the motive of commission of crime is on a shaky premise. Evidence has been led that the in-laws of the deceased pressurised her to transfer the land gifted to her husband to joint family stock. Even if it is accepted as motive of the crime, I find it difficult to believe that her husband would join the other in-laws in that endeavour and commit murder of his wife.
Finally, it has been argued that the prosecution case ought to be believed as the victim was residing at her matrimonial home at the time of occurrence and no explanation is forthcoming from the appellants how her mutilated dead body was recovered from a banana plantation adjoining their homestead. Burden of proof in a criminal trial always rests on the prosecution. Only when the prosecution has been able to establish a set of circumstances leading to the inference that 9 homicidal death of the victim is within the "special knowledge" of an accused, does failure on his parts to explain the circumstances leading to the homicidal death gives rise to an adverse inference against him. In the present case body of the victim was found in a banana garden which is accessible to all. It is nobody's case that the banana garden was bounded by a wall or was in the exclusive possession and control of the appellants alone. That apart it appears from the rough sketch maps (Ext. 14 & 15) relied upon by the prosecution that the appellants particularly, the appellant no. 3 was residing in a separate house from that of the victim and her husband. Apart from the speculative opinion of the I.O. (P.W. 20) which is inadmissible in law, there is no legally admissible evidence that the victim was murdered inside her room and thereafter her dead body had been put into banana plantation, as alleged. In the absence of cogent evidence on record with regard to homicidal death of the deceased in a place which was within the exclusive control and custody of the appellants, it is impermissible to draw adverse inference against them for the reason that they have failed to come up with an explanation as to how the victim suffered homicidal death. Even the prosecution case that the appellants had floated a false plea amongst their neighbours that the victim had been killed by 'ghosts' has not been supported by the local people. P.W.s 1 and 18 who generally spoke of such rumour, however, did not attribute it to the appellants.
Hence, the prosecution case has not been proved beyond reasonable doubt and appellants are entitled to the benefit of doubt. Appellants are acquitted from the charges levelled against them.
Hence, I set aside the conviction and sentence of the appellants. Appeal is allowed.
10Appellants shall be forthwith released from custody if they are not wanted in any other case upon executing a bond to the satisfaction of learned trial court which shall remain in force for a period of six months in terms of section 437A Cr.P.C..
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.) akd/sdas/tkm&PA