Calcutta High Court (Appellete Side)
2) Dayamoy Mondal (Both Are In Jail) vs The State on 17 September, 2010
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Appellate / Revisional /Criminal Jurisdiction
Present :
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 412 OF 2004
1) Patit Paban Mondal
2) Dayamoy Mondal (Both are in Jail) ..... Appellants
Vs
The State ....Respondent
For the Appellants : Mr. Biplab Mitra
Mr. Amajit De
For the State : Mr. Sushil Kumar Mahato
Judgment on : September 17, 2010.
RAGHUNATH RAY, J. :
Conspectus of Appeal This Jail Appeal is directed against the Judgment and Order of conviction and sentence passed by the learned Additional Session Judge, 2nd Court, Bankura in Sessions Trial No. 2(9) of 2003. By the afore-mentioned judgement and order impugned dated 26.02.04 and 27.02.04 appellant Nos. (1) Patit Paban Mondal (In short A1) and (2) Dayamoy Mondal (In short A2) were found guilty of charges under sections 498A/302/34 IPC and both of them were convicted accordingly. They were sentenced to suffer imprisonment for life each and to pay a fine of Rs. 2 2000/- each in default whereof one month R. I. for the offence under section 302/34 IPC. They were also further sentenced to suffer R. I. for three years and to pay a fine of Rs. 5000/- each in default whereof fifteen days R. I. more for the offence under section 498A of IPC. Sentences were to run concurrently.
Background facts
2. The factual matrix leading to the filing of this appeal by these two appellants from Medinipore Central Correctional Home may be summarized as under ;-
(1) One Ananda Mondal of village-Manipur, PS - Karimpur, Dist. Purulia, lodged an FIR on 18.01.2001 contending inter alia that her sister Tulsibala Mondal was married to Dayamoy Mondal, the eldest son of Patit Paban Mondal of Chandra village, within Saltora PS, District Bankura, in the year 1996. She was, however, subjected, to severe physical and mental torture by her husband and in-laws on various pretexts after the birth of a male child. Whenever she visited the informant's house, she used to narrate in details how she was tormented in her matrimonial home and also used to wail miserably by saying that her in-laws won't let her live. All on a sudden at 2 O'clock her father-in-law had been to his house to tell them that their sister had committed suicide around 10 O'clock.
They rushed to their sister's house and found her dead.
3. On the basis of such allegations as above Saltora PS Case No. 03 dated 18.01.01 under sections 498A/306/34 IPC was registered for investigation 3 against both the appellants and the case was endorsed to Debasis Ray, S.I. for investigation.
Investigation
4. In course of investigation the I.O. prepared a rough sketch map with index of the P.O. (Exhibit 8) and also tagged the U/D Case No. 2 dated 17.01.01., with the afore-mentioned specific PS case. He also held Inquest over the dead body of the victim in the house of appellants at village Chandra on 17.01.01 and prepared Inquest Report (Exhibit 9). During investigation he also examined available witnesses at the P.O. and also prepared the seizure list (Exhibit 10). The opinion of the autopsy surgeon was also collected by him and on completion of investigation he submitted the charge-sheet under sections 498A/302/34 IPC against A1 & A2 in G.R. Case No. 28/01. Since accused persons were charge- sheeted under sections 498A/302/34 IPC which are triable exclusively by the Court of Sessions, the case was committed to the Court of the learned Sessions Judge, Bankura in terms of section 209 Cr. P.C. by the learned S.D.J.M. Bankura vide order dated 20.01.03.
Heads of charge
5. Both the appellants were charged under section 498A IPC as also under section 302/34 IPC by the learned Additional Sessions Judge, 2nd Court, Bankura, vide order dated 06.09.03. Both the appellants pleaded not guilty and claimed to be tried.
Accordingly both of them were directed to answer charges so framed against them as follows ;--
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"First :- That you on or about 13 years ago prior to 18.01.2001 marriage of Tulsibala was held with you Dayamoy as per Hindu Marriage religions rites and customs and since then she had been residing with you in your house at village Chandra P.S. Saltora Dt. Bankura and during her stay till her death, you being the husband and father-in-law of Tulsibala, in furtherance of your common intention used to torture upon her mentally and physically which was of such a nature (illegible) likely to drive her away from her matrimonial home, and thereby committed an offence punishable under section 498A of the IPC and within the cognizance of this Sessions Court.
Secondly - That you, on or about on 16.01.2001 at about 10.00 AM at village Chandra under P.S. Saltora in your own house, you both the accused persons in furtherance of your common intention to commit such offence you both the accused persons with such common intention did commit murder of Tulsibala by strangulation and thereby committed an offence punishable under section 302/34 IPC and within the cognizance of this Sessions Court."
Accordingly they were put to trial.
The Trial
6. Prosecution examined as many as 13 witnesses and also relied upon several exhibits (1 series, 2 series,3 series,4,5,6,7,8,9,10 & 11) in support of its case while one witness was examined from the side of defence in order to substantiate its plea of alibi, innocence and denial.
7. The defence case, as is gathered from the trend of cross-examination and accused persons' examination under section 313 Cr. P.C. is that the victim 5 committed suicide and appellants were not in their house at the fateful moment of commission of suicide and as such both of them are innocent. Even though they have no involvement, they have falsely been implicated.
8. On consideration of evidence and circumstances on record the learned Court below recorded a finding of guilt under section 498A/302/34 IPC against both the appellants and they were sentenced accordingly as indicated earlier.
In Appeal
9. Feeling aggrieved by and dissatisfied with the afore-mentioned judgement and order of conviction and sentence impugned both the appellants have preferred the instant Jail Appeal.
10. The impugned judgement was assailed by Mr. Biplab Mitra, learned State Defence Counsel for the appellants on the following grounds ;-
(i) There were no eye-witnesses to the incident of alleged murder of the victim and no independent witnesses were also examined to corroborate the version of the prosecution.
(ii) The exact location of the P.O. is also not available within the four corners of evidence adduced by the prosecution and as such in the absence of proper identification of the P.O. the prosectuion story as projected is not believable.
(iii) Even though, exact location of the P.O. can not be pinpointed, blood was seized from the courtyard of the house of the appellants. 6
(iv) Appellants' arrest from their house is not sufficient to draw any adverse presumption against them in this case of unnatural death of a housewife in her matrimonial home.
(v) The Seized articles were not produced in the court by the prosecution for its identification by the witnesses.
(vi) Post Mortem Report is absolutely silent as to the age of the injuries.
(vii) The sole defence witness namely, Nagen Mondal has categorically deposed that A1 had been to his field while A2 went to the market at the material point of time. But such vital evidence establishing alibi of the defence has not been taken into consideration in its proper perspective by the learned trial court.
(viii) The plea of alibi has been substantiated from the testimony of DW1 as also from appellants' examination under section 313 Cr. P.C. It appears, therefore, that A2 had been to the market for fetching goods for his shop while A1 had been to the field in connection with cultivation works.
Therefore, the learned Court below has committed illegality in not accepting such plea of alibi.
(ix) By placing reliance upon the PM Report it is argued by Mr. Mitra that dastardly murder was done single handedly. In such a situation, even if, for argument's sake, it is accepted that A2 committed the crime, the materials on record are not sufficient to convict A1, the father-in-law of the victim. His failure to come out of another room to save his daughter-in-law 7 should not be viewed seriously since he had no occasion to hear any cry for help from her.
(x) Mr. Mitra, concludes his argument by saying that shortcomings of the prosecution case as pointed out hereinbefore are sufficient to upset the order of conviction and sentence passed upon A1 and A2. In the alternative, it is submitted by him that for lack of sufficient materials against A1 an order of conviction and sentence cannot justifiably be passed at least against him.
Per Contra
11. Appearing on behalf of the state, Mr. Mahato, argues that it is a case of brutal murder and even the dead body of the victim was kept concealed in the house of appellants for atleast two days and, thereafter, information was given to her parental home by A1 himself to the effect that their daughter-in-law had committed suicide. According to him, appellants have failed to explain the circumstances which led them to keep the dead body of the victim concealed for two days. They have also not cared to offer any satisfactory explanation as to how the victim sustained injuries while she was staying in her matrimonial home with her husband, A2 and father-in-law, A1 together with her minor children. It is, further, argued by him that in the absence of suitable and convincing explanation as to how the victim died, an adverse presumption against them is to be inferred by the court. It is also submitted by him that there are cogent and consistent circumstances on record to fasten both the appellants with the commission of a heinous murder of the victim. He, therefore, supports the 8 findings of the learned Trial Court and submits that the order of conviction and sentence should be upheld in the facts and circumstances of the present case.
12. Before proceeding to evaluate the evidence and circumstances on record, it would be apt to categorise all the witnesses examined on behalf of the prosecution under the following heads for facilitating a profitable discussion over ocular testimony in its proper perspective.
Profile -
I. Relations of the Victim
(i) PW 1- Paritosh Mondal, Cousin (Mamato) of the victim.
(ii) PW3- Ananda Mondal, FIR maker &
(iii) PW4 - Ajit Mondal, both are brothers of the victim.
(iv) PW7- Satyaban Mondal, aged 10/11 years, minor son of the victim &
(v) PW8 - Sabari Mondal, aged 5/6 years minor daughter of the victim. Both of them were not tendered by the prosecution since they were gained over.
II. Independent co-villagers and a close neighbour
(i) PW2 - Madhusudan Barui, (ii) PW6 - Sudhakar Mondal and (iii) PW-9- Dhananjoy Bauri are co-villagers of the appellants while (iv) PW5 - Sudam Das, is a close neighbour of the appellants. Out of them PW9 was declared hostile and he was cross-examined by both the prosecution and the defence as permitted by the learned Trial Court.
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III. Medical Evidence PW11- Dr. J. N. De, Principal and Head of the Department of Forensic Medicine of Bankura Sammilani Medical College Hospital conducted Post - Mortem Examination of the victim.
IV Police Witnesses
(i) PW10 - Swapan Sarkar ASI, posted at Saltora P.S. at the material point of time was a wintess to the seizure of one jute made old damaged rope and some quantity of husked paddy.
(ii) PW12- Maniklal Chatterjee, a constable of Saltora PS carried the dead body to the Bankura Morgue and
(iii) PW 13- Debdas Ray S.I. is the I.O. of this case.
Evidence
13. It is an admitted position that the prosecution case hinges upon circumstantial evidence since none of the PWs witnessed the incident of such a gruesome murder of a housewife in her matrimonial home. The ocular testimony of prosecution witnesses is to be reassessed in the light of rival submissions advanced by both sides coupled with the principles of law as enunciated in various judicial pronouncements on the nature and efficacy of circumstantial evidence establishing the guilt of the accused decisively.
I. Relations of the victim
14. Ananda Mondal (PW 3), the victim's brother has proved the FIR (Exhibit 1) which was scribed by Paritosh Mondal, PW1. FIR, the basic document which sets the criminal law into motion has depicted a grim picture of the victim's 10 matrimonial life which was full of discord and discontentment . There was, in fact, no harmonious relationship between the spouses. She was abused and assaulted both physically and mentally by her father-in-law (A1) and husband (A2). FIR also speaks about her helplessness. Being unable to bear with the severity of such torture inflicted upon her, she wanted to put an end of her life by jumping into a well. The informant was aware of all such physical and mental torture meted out to his sister since she used to divulge the same whenever she had occasion to visit her parental home. The contents of FIR thus stand corroborated by the informant in his testimony as PW3. His specific evidence is that her husband (A2) and father -in -law (A1) used to torture and assault her repeatedly after the lapse of two years from the date of her marriage and her sister narrated such incidents of frequent torture to them when she used to visit her parental home. He further deposes that on receipt of information from her father in law that their sister had committed suicide, he along with his brother Ajit (PW2) and Tarapada Mondal, proceeded to her sister's matrimonial home and found her sister's dead body lying on a cot inside a room and found one cut injury on her forehead as also found other marks of assault on the back and it was bleeding from ear and nose. At the relevant point of time A2 was also present and being asked as to why he had murdered his sister he replied that the victim had committed suicide. He categorically asserts that both the appellants murdered their sister in their house. It is elicited during cross-examination that both the appellants were present in the house at the time of incident. 11
15. Paritosh Mondal (PW1), deposes that on 16.01.2001, Tulsibala died in the house of her father-in-law at Chandra village, and uncle of Tulsibala i.e. Tarapada Mondal reported him about the death of the Tulsibala and he went with him to see the dead body of Tulsibala and at that time the accused persons were present and on query they reported that Tulsibala committed suicide.
16. Ajit Mondal (PW1), the brother of FIR maker deposes that his sister used to reside at her matrimonial home at Chandra alongwith her husband, father- in- law and her two minor children in a joint mess and house till her death. It, further transpires from his evidence that when his brother Ananda, Tarapada & Paritosh had been to the appellants' house they saw wounds, bleeding injuries on the person of his sister and her dead body was found on a cot in the house of the appellants. It is also available from his testimony that on their query about such injuries appellants told them that the cause of sustaining injuries by the deceased was due to fall from the Kotha House. Nothing has been extracted from his cross-examination to show that he had deposed falsely. In fact, his testimony remains unshaken during cross-examination. This deponent, although a close relation of the victim, is a wholly reliable witness.
II. Independent co-villagers
17. Madhusudan Bauri (PW2), a co-villager of the appellant testifies that when he had been to the house of the appellants, he found the dead body of Tulsibala lying on the cot in their courtyard and many villagers were present and 12 appellants were also present in their house. The dead body of the victim was recovered and the Inquest report was also prepared by the I.O. PW13 in their presence. During cross-examination PW2, however, gives out that the relationship between Dayamoy and his wife was very good. Pausing here for a moment it may be pointed out that barring P.W1 no other PWs including close relations of the victim have supported such version of PW2. Rather all of them have spoken about a very strained relationship between the spouses as also with her father-in-law after two years from the date of marriage. PWs 1 & 2 have, however, merely stated that relationship between Dayamoy and Tulsibala was good without indicating whether it was good during their entire conjugal life of more than a decade and a half or a part thereof. Such assertion by these two PWs in a most casual fashion cannot be acted upon for lack of corroboration by other reliable witnesses. At any rate, evidence of PW2 on the point that the dead body was lying on a cot in the courtyard of the house and both the appellants were present at that material point of time remains unchallenged during cross- examination.
18. Dhananjoy Bauri (PW9), another co-villager, even though a hostile witness, has corroborated other PWs including PW1 to PW5 by deposing that the wife of A2 died in the house of the appellants and she used to reside with Dayamoy (A2) and his father (A1). He has, however, retracted from his earlier statements made before the I.O. on the point of torture perpetrated upon Tulsibala by her husband (A2) and father-in-law (A1) leading to her death in the house of appellants. The reason for such retraction from his previous statement is best known to him. At 13 any rate, instead of discarding his testimony in toto, reliance upon the afore- mentioned portion of his testimony can be placed since the same stands corroborated by the testimony of other PWs.
19. It is available from the testimony of PW6 Sudhakar Mondal, a co-villager, that he saw the dead body of Tulsibala in front of the door of the house of appellants and they showed her dead body after bringing it out from the room of their house. He found a wound with bleeding on her forehead. On query from A2 it was learnt that Tulsi fell down at the time of collecting kura (husks of paddy) from kotha and died. Police recovered her dead body and the appellants were arrested from their house. During cross-examination it is elicited that he was not examined by the police earlier and he was stating for the first time before the court. His testimony, however, stands corroborated by other PWs.
II. A Close neighbour
20. PW5 :- Sudan Das, happens to be a close neighbour of the appellants. He resides at a distance of 400-500 cubits from appellant's house. He is also categorical in his evidence that when he had been to the house of the appellants he saw the dead body of Tulsi and found a swelling and the mark of abrasion on her head and on inquiry Dayamoy stated to him that the dead body was lying in that room for two days. It is also available from his evidence that he went to the house of appellants at 11 AM when Dayamoy alongwith his father Patit was in their house. It is elicited from his cross- examination that he went to the appellants' house in response to a hue and cry of the villagers. It reveals from his cross-examination that sons of 14 Dayamoy never stated to him that Dayamoy had been to the market and Patit went to tend cows. There is nothing on record even in the form of defence suggestion to show that this close neighbour of the appellants had any outstanding grudge or enmity against the appellants. We, therefore, do not find any reason, rather convincing to brush aside the testimony, of this disinterested neighbour of the appellants.
III. Medical Evidence
21. Adverting to medical evidence, it is found that Dr. J.N. Dey, PW11 conducted the PM Examination over the dead body of Tulsibala, aged 30 years brought and identified by Ramesh Paria (Constable No. 1005) and Manik Chatterjee (Constable No. 754) in connection with Saltora U/D Case No. 2/2001 dated 17.01.2001 and he found the following injuries :-
(i) A lacerated wound 1" x ½ " x muscle over lower part of left side of forehead.
(ii) An abrasion 2" x 1" over left mallar region. (iii) An abrasion 4" x 1" over left shoulder. (iv) An abrasion 2 ½ " x 2" over right scapular region. (v) An abrasion 4" x 1" over lower border of right side of the mandible. (vi) An abrasion 1" x 1" over medial aspect of left elbow. (vii) Graze abrasion 8" x 1" over left side of back of chest. (viii) An abrasion 8" x 2" over left gluteal region. (ix) A ligature mark 6" x 2" over lower part of front of neck from right angle to
left angle of mandible, which was more or less circular or lowed down. 15
The ligature mark was deeply furrowed, abraided (torn) and dark brown in colour.
On dissection the skin and site of the mark was deeply parcementile and the tissues between the skin was hardened, whitened, thicked and glistening in character.
On further dissection :
1. Fair amount of extravasated clotted and liquid blood seemed to infiltrate the tissues of front of neck covering an area of 5" x 3".
2. Fair amount of extravasated clotted and liquid blood seemed to infiltrate the tissues of both sides of front of chest covering an area of 8" x 1" on right side and 6" x 4" on left side.
3. Fractures of all ribs on both sides with gross laceration of both lungs both chest cavities contained fair amount of extravasated clotted and liquid blood.
4. Fair amount of extravasated clotted and liquid blood seemed to infiltrate the tissues in the whole larynx and trachea.
5. Sublactation of cartilage of larynx and trachea.
6. Fractures (sublactation) of greater carno of hyoid bone on both sides.
7. Fair amount of extravasated clotted and liquid blood seemed to infiltrate the issues of the left parito temporal regions covering an area of 4" x 3".
Fair amount of extravasated clotted and liquid blood seemed to infiltrate the tissues in and around lacerated wound as fractures (sublactation) described above.
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22. Dr. Dey (PW11), has opined categorically that death was due to effect of strangulation by ligature described in the body of the report ante mortem and homicidal in nature. It has further been opined by him that such ante-mortem injuries were caused due to severe assault. He has proved the original PM Report (Ext. 4).
23. By way of clarification it is emphatically stated by him that the "lady was strangulated to death and the person who strangulated the lady sat on the chest creating heavy pressure and due to fracture of bone, the lungs were completely raptured and collapsed."
24. He has also forcefully ruled out the defence version by giving a definite opinion that it is impossible, to sustain such sort of injuries on the chest and ribs, if any one subsequently slipped and fell down on the hard surface. According to him, practically the person who strangulated the lady pressed a piece of rope over the front of the neck only for which frontal part of the neck the ligature mark was found but on the back portion of the neck, there was no mark of injury and for which the hyoid bone was also fractured. He has further opined that all the injuries including the ligature mark were ante- mortem in nature and death was caused. It is also clarified that even if ligature mark would not be found in this case, injury to the lungs was sufficient because lungs were raptured.
25. The Post Mortem Doctor has further proceeded to offer his clear opinion as under :-
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"If the injuries as found on the person of the deceased are conjointly taken into consideration it can be said without any hesitation that it was a brutal murder."
It is elicited in his cross - examination that practically death was caused within 24 to 48 hours prior to the time of his PM Examination. Even in his cross- examination he has rejected the defence suggestion by giving his categorical opinion that if any one falls from the height of 12 feet in hanging condition there is no scope for sustaining such sort of conjoined injuries.
IV. Police Witnesses
26. PW10 Swapan Sikdar , ASI deposes that he was a witness to the seizure of Jute made old damaged rope and some quantity of husks of paddy under a proper seizure list made by the I.O. The signature (Exhibit 2(b)) appearing on the seizure list was proved by him. The seized rope and husks of paddy were marked as (Mat. Ext. I) collectively on his identification. Such being the factual position, Mr. Mitra's argument that seized articles were not produced for its identification by the witness is not tenable.
27. Maniklal Chatterjee (PW12), a Constable of Saltora PS was present when Inquest was held over the dead body of the victim in the house of appellants. After taking charge of the dead body he carried the same to Bankura Morgue and handed it over to the Autopsy surgeon and on his identification, the P.M. of the dead body was held by Dr. J.N. Dey (PW11).
28. Debdas Roy (PW13) SI of Police, I.O. of this case deposes that in the absence of OC he took up investigation, and visited the P.O. It is available from his 18 testimony that Paritosh Mondal (PW1) informed him on 17.01.2001 that on 16.01.2001 at about 10 AM Tulsibala Mondal committed suicide at her house and on the basis of such information one U/D case was started. He is very categorical in his testimony that at the time of holding Inquest he personally saw the injuries all over the body and one injury was found deep on her left forehead. During investigation he examined the witnesses at the P.O., prepared a seizure list by seizing one 'Pater Dori' and 'Dhaner Kuro' from the house compound i.e. from the room where the dead body was lying in the house of the appellants. On completion of investigation he submitted the charge sheet u/s 498A/302/34 IPC against accused Patit Paban Mondal & Dayamoy Mondal. It is elicited from his cross-examination that Ananda Mondal, Ajit Mondal, Madhusudan Barui, Tarapada Monda & Paritosh Mondal were examined by him and they stated that they found the dead body of Tulsibala in the 'Aatchala' but they did not state that Tulsibala committed suicide.
29. Having most carefully and closely scrutinized the galaxy of proven facts revealed through the ocular testimony of prosecution witnesses in the light of medical evidence on record we find that ocular testimony is in absolute conformity with the medical evidence. External injuries on the body of the victim were visible to the witnesses and their account stands confirmed by both the Inquest Report (Exhibit 3) and PM Examination Report (Exhibit 4). The prosecution witnesses speak about the murder of the victim and the doctor PW 11 has also unequivocally opined that it was a case of brutal 19 murder. Therefore, in the absence of any conflict between ocular testimony and medical evidence, we have no hesitation in acting upon such corroborative evidence since there is no scope to doubt its trustworthiness and acceptability.
Plea of Alibi
30. Turning to the defence plea of alibi, it is found that one Nagen Mondal, a co-villager has been examined as DW I to substantiate the defence of alibi. Before undertaking a reappraisal of his testimony it would be convenient to look into the requirements of a satisfactory alibi and the standard of proof required to establish the defence of alibi successfully. The first requisite is that it should be pleaded at the earliest opportunity and the second one is that it should cover the time of the alleged offence. In the instant case a specific plea of alibi was put forward through a defence suggestion to the witness and as such the first requisite is satisfied. But no specific suggestion covering the time of their temporary absence from their residence as also commission of alleged offence was offered to the PWs. Even in his examination under section 313 Cr. P.C. A2 has merely stated that he had gone to fetch goods from the shop without even mentioning the approximate time of alleged departure from his house. Even the place wherefrom he fetched goods for the shop has not been named. A1 has, however, not pleaded any such alibi specifically during his examination under section 313 Cr. P.C. DW1 is also equally silent on these vital aspects of the matter. Non-disclosure of such relevant and important particulars regarding the time of alleged departure from their house as also commission of offence and 20 further the distance of places claimed to have been visited by them at the material point of time, therefore, does not lend credence to their plea of alibi. In such view of the matter the second requisite of the plea of alibi is not satisfied in this case.
31. In this context it is importantly important to note that the onus of proving a plea of alibi is on the accused vide 1978 Cr. L. J. 141 [State of Uttar Pradesh, Appellant vs. Sughar. Singh & Ors. Respondents). Therefore, the appellants must prove the plea of alibi to the satisfaction of the Court by producing cogent and consistent evidence so that the court comes affirmatively to the conclusion that the appellants could not have participated in the commission of horrendous crime in their own residence. However, the plea of alibi can also be spelt out from the prosecution evidence, if it is available therefrom. True it is that when a plea of alibi is taken, it is open to him to establish such plea by preponderance of probabilities and to make it 'probably resonable'. But the fact remains that such plea of alibi must be proved with absolute certainty so as to completely exclude the possibilities of the appellants at the scene of the crime. Reliance can also be placed in this regard upon two rulings of the Apex Court reported in 1984 Cr. L. J.187 [Purna & Anr. Appellants vs State of U.P., Respondent] and 1997 Cr. L.J. 2242 [Rajesh Kumar Vs. Dharam Vir.].
32. As a matter of fact, illustration (a) of section 11 of Evidence Act deals with the plea of 'alibi' meaning thereby 'elsewhere'. The import of the term used by the accused for his defence is that when the occurrence took place he was so far away from the place of occurrence that it is physically impossible and highly 21 improbable that he would have participated in the crime. 'Alibi' is, therefore, only a rule of evidence recognized in section 11 of Indian Evidence Act. It does not come within the meaning of general or special exception as envisaged in the Penal Code or any other law. Since the circumstances leading to alibi are within the knowledge of accused setting it up, as provided under section 106 of Indian Evidence Act, he has to establish the same satisfactorily.
33. Viewed in the light of sound proposition of law discussed in foregoing paragraphs, it can be said that the burden on the accused is heavy as required under section 103 of the Indian Evidence Act which provides that the burden of proof as to any particular fact is on that person who wishes the court to believe in its existence. Therefore, the strict proof is required for establishing the plea of alibi. It is well-settled that it is for the accused to prove the case of alibi to the hilt. As already indicated earlier in the instant case the plea of alibi is not backed by strong and solid evidence. A close look to DWI's testimony reveals that the same lacks relevant particulars and minute details which are essentially required for strengthening the appellants' claim of alibi. In the present case, it, however, appears to be a weak type of plea since sufficiently strong materials have not been brought on record to establish that the appellants were not present at the scene of occurrence at 10 AM on 16.01.2001 when the incident of gruesome murder occurred. On the contrary, there are corroborative evidence and circumstances on record to conclusively prove their presence at the scene of occurrence at the material point of time.
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34. Having scanned, the evidence and circumstances on record led on behalf of both sides, we are of the definite view that the appellants have failed and miserably failed to establish the plea of alibi as per legal requirement and such plea set up by them was nothing but a desperate attempt to get over the cogent and consistent evidence of the prosecution establishing their involvement with the commission of crime of murder. The plea of alibi stands rejected accordingly.
Special Knowledge
35. Now the point at issue is whether materials on record do justify conviction of the appellants as perpetrators of such a gruesome murder. Needless to repeat that there is no direct evidence to the commission of murder and the case entirely rests on circumstantial evidence. It is settled position of law that the chain of events furnished by the circumstances must be so closely knit so as to exclude all the reasonable hypothesis of the innocence of the appellants. In other words, circumstances alleged against them must be conclusively established and the evidence projecting a chain of circumstances must point unerringly to their guilt.
36. Keeping all these principles in mind we have reassessed the circumstantial evidence on record. One of the most important circumstances is that, even though both the appellants were present in their house as adult members of the family at the material point of time when after causing injuries on her person she was subsequently strangulated to death in a ruthless manner as is evident from PM report (Exhibit 4), they failed to explain such a terribly 23 horrifying situation leading to the strangulation of a house wife in her matrimonial home.
37. The next crucial question comes up for consideration is whether reasonable inference of guilt can be drawn against the appellants in the light of rule of evidence contained in section 106 of Evidence Act on their failure to explain the situation under reference. At the outset it should be made clear that the rule of burden proof that the prosecution is to prove the guilt of the accused, is, not in anyway, modified by provisions of section 106 of Evidence Act. It is applicable only to cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted on proof of some facts, which in its nature can only be within the special knowledge of the accused. Importantly, if the prosecution fails to prove the essential ingredients of the offence no duty is cast on the accused to prove his innocence. In the case in hand it is evident from a close dissection of ocular testimony which fits in medical evidence on record that the victim wife who sustained injuries was strangulated to death in a ruthless manner in her matrimonial home and at that fateful moment no other adult members save and except A1 and A2 were present and the possibility of any stranger's access in the appellants' house stood totally excluded at that material point of time. It can, therefore, be reasonably presumed that the facts and circumstances leading to inflictment of injuries upon the person of the victim and, thereafter, strangulating her to death is within the special knowledge of the appellants. In such circumstances, provisions of section 106 of the 24 Evidence Act would come into play since such facts and circumstances are especially within the knowledge of the appellants and, therefore, both of them owe an explanation in this regard. In such a fact situation, the burden of proving the facts leading to strangulation of a house wife to death lies upon the appellants. Moreso, whenever the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn against the appellants vide 2000 Cr. L.J. 4047 [State of WB vs. Md. Omar & Ors. Respondents Paras 36 & 37].
38. However, in this context it is worth-mentioning that section 106 of Evidence Act cannot be utilised to cast the burden on the accused to prove his innocence by relieving the prosecution of its burden of proof. In fact, it is well- settled proposition of law that the prosecution has to stand on its leg and cannot derive any strength or support from the weakness of the defence case. As a matter of fact, section 106 of Evidence Act is intended to be applied in exceptional circumstances wherein it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused, and knowledge of that fact is not available to the prosecution. It is, therefore, reiterated that before the burden of onus is shifted to the accused the prosecution has to establish a strong prima facie case. It is needless to mention that in the present case the appellants and the deceased were the sole occupants of their residential premises wherein the deceased was found strangulated to death with injuries on her person. Whenever some occurrence happens inside the residential house of the 25 appellants wherein their presence is confirmed by cogent and consistent evidence on record at or about the time of incident they are bound to offer their version as to how the occurrence took place. They are the only persons who can speak about the occurrence and as such appellants only can offer an explanation. Section 106 of the Evidence Act clearly states that whenever any fact is specially within the knowledge of a person, the burden of proving the facts is upon him. It is true that this section cannot be used so as to shift the onus of proving the offence from the prosecution to the accused. However, in the instant case there is satisfactory evidence on record which fastens or conclusively fixes the liability for the death of Tulsibala, the victim on the appellants, the only adult inmates of the house present therein at the relevant point of time. So in the absence of any other explanation, the only possible inference is that both the appellants have participated in the heinous act of commission of such a gruesome murder.
Presumption of fact
39. Another most significant circumstance is that, even though the victim house wife was murdered on 16.01.01 her dead body was kept concealed in the residential portion of the appellants' house for two days without even informing their close neighbours or her parents not to speak of giving information to the local PS. The factum of concealment of dead body of the victim has come to the fore through the evidence of a co-villager /close neighbour (PWs 5 & 6). Such concealment of victim's dead body was also admitted by both the appellants during their examination under section 313 26 Cr. P.C. Having regard to the common course of natural events and human conduct etc. this court is empowered to presume the existence of any fact which it thinks likely to have happened. The appellants' conduct in not divulging the 'unnatural death' of A1's daughter-in-law and A2's wife is not in conformity with the normal human conduct and behaviour. From the proved facts as indicated earlier the appellants' such indifferent conduct appears to be doubtful and this court exercising a process of reasoning has reached a logical conclusion as to the probability factor which reasonably indicates involvement of appellants in commission of an offence of murder of a house wife. Moreso, whenever there is evidence to show the appellants' willful conduct of cruelty against the deceased spreading over the years. Further, the conduct of the appellants immediately after occurrence, is consistent only with the guilt. Assuming, though not admitting, that it is a case of 'unnatural death', the normal human conduct would have been to set the law in motion and that would have been the normal pattern of human behaviour for the grieving husband and father-in-law. Certainly, the concealment of the dead body of a house wife is not compatible with the innocence of the appellants specially in the absence of any plausible explanation. In this case the prosecution has, succeeded in establishing several circumstances wherefrom inference of existence of fact from other sets of proved facts can easily be inferred. Such principle has gained legislative recognition under section 114 of the Evidence Act. In this context we may rely upon a ruling of the Apex Court reported in 2000 Cr. L. J. 4047 [State of WB vs. Md. Omar & Ors. 27
(supra)]. Therefore, an, adverse presumption or inference can be drawn against the appellant in terms of section 114 of Evidence Act for their failure to explain circumstances leading to concealment of the victim's dead body for two days without even informing close neighbours, parents of the victim or the local police.
Applicability of Section 34 IPC
40. Mr. Mitra's argument, that since as per P.M. Report (Exhibit 4) the victim was strangulated to death single handedly the guilt of A1 has not been established, is now taken up for consideration against the backdrop of both the appellants having been charged under section 302/34 IPC and subsequently convicted and sentenced thereunder.
41. It is a settled position of law that to apply section 34 IPC there could rarely be direct evidence. The ultimate decision would invariably depend upon inference deducible from circumstances of each case. The common intention or the intention of the individual concerned in furtherance of common intention could be proved by inference from the acts or attending circumstances of the case and conduct of the parties in the absence of direct evidence.
42. As already indicated earlier it is established that the victim was subjected to frequent physical and mental torture by both the appellants. Such strained relationship continued to exist between the victim and the appellants for a pretty long time. There are also other attending circumstances to show that 28 both of them had deep-rooted hatred and ill-feeling against the victim. Incidentally, it is worth-mentioning that in response to a question put to PW1 by the Court, he replied that both the appellant and the son and daughter of Tulsi used to reside jointly in the house of the appellants and there were no other adult members in their house. In such a fact situation, appellant A1 cannot escape his liability in sharing common intention with A2. Considering all these facts and telling circumstances on record we are of the view that evidence on record clearly establishes that both of them shared common intention to do away with the precious life of the house wife without even taking into consideration the grim future of her two siblings. In such view of the matter we feel convinced to hold that the learned Trial Court is absolutely justified in holding both the appellants guilty under section 302/34 IPC.
Telling Circumstances
43.On a close analysis of the evidence and materials on record as discussed earlier the following circumstances emerge :-
(i) The victim Tulsibala was subjected to severe torture both physically and mentally by her husband (A2) and father-in-law (A1) frequently even though she led a conjugal life of about one decade and a half having one minor son aged 10/11 years and one minor daughter aged 5/6 years. 29
(ii) She used to reside permanently in her matrimonial home with her husband (A2), and father in law (A1) and two minor children.
(iii) On 16.01.01 at 10 AM when she was brutally assaulted and strangulated to death two adult members i.e. A1 & A2 were present in their house.
(iv) Even though the victim was with A1 & A2 at their residence at the fateful moment, no satisfactory explanation is forthcoming from them either in their examination under section 313 Cr. P.C. or during PWs' cross-
examination in the form of defence suggestion as to how the victim sustained bleeding injuries.
(v) Even though P.M. examination report clearly establishes that due to the effect of strangulation by ligature the death of the victim was caused and further that the injuries were ante-mortem and homicidal in nature, the appellants have sought to set up a false plea of commission of suicide by the victim through defence suggestion to the witnesses.
(vi) Again to cover up the injuries on the person of the victim, during their examination under section 313 Cr. P.C. appellants have sought to cook up a fabricated story of the victim's fall from the roof top although the P.M. doctor's opinion to the effect that if the injuries are found on the person of the deceased are conjointly taken into consideration it can be said without any hesitation that it was brutal murder. Such medical opinion, therefore, belies the possibilities of a fall from the roof top.
30
(vii) Appellants' failure to explain the circumstances leading to concealment of the dead body of the victim in their house for two days raises an adverse presumption against appellants.
(viii) Appellants' conduct in visiting the victim's parental home after concealment of the victim's dead body for two days in their own house and furnishing a false information about commission of suicide by the victim speaks volume.
(ix) Appellants' prevarication to the question put to them by witnesses, who came to the P.O. after getting delayed information, about the cause of the death of the victim leaves room to doubt the bonafides of the appellant especially, whenever some of them were told about commission of suicide while others were provided with the story of fall from the rooftop.
(x) Appellants' plea of alibi as sought to be put forward through DWI stands demolished by cogent, consistent and convincing evidence of some of the PWs who were very categorical and assertive in their testimony that both the appellants were in their house at the fateful moment.
44. On our appreciation of entire materials and circumstances on record we are of the clear view that cogent and consistent circumstances as projected and established from the side of the prosecution taken cumulatively has formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. Instead of explaining or clarifying the pieces of incriminating 31 circumstances inculpating them and also connecting them with the crime both of them have merely resorted to total denial when such incriminating circumstances were brought to their notice by the learned Trial Court. Such a circumstance forms an additional link to the chain of events brought through some of the telling circumstances. In this context we would like to refer to a very recent ruling of the Apex Court reported in 2010 Cr. L. J. 1459 [Satni Bai vs State of M. P. (now Chattrisgarh)]. In paragraph 16 of the said judgment it is laid down that conviction "can be based solely on circumstantial evidence but it should be tested on the touchstone of the law relating to the circumstantial evidence." In the present case, inference of guilt can be justified in view of the fact that all incriminating facts and circumstances are found to be incompatible with the innocence of the appellants.
Decision
45. In view of foregoing reasonings and discussions we do not find any legal infirmity in the judgement and order of conviction and sentence impugned. We, therefore, affirm the order of conviction of the appellants under sections 498A/302/34 IPC. The sentence of imprisonment for life and also to pay a fine of Rs. 2000/- each in default whereof one month R.I. for the offence under sections 302/34 IPC imposed upon the appellants by the learned Trial Court is also commensurate with the gravity of offence. Further sentence to suffer R. I. for three years and to pay a fine of Rs. 5000/- each in default 32 whereof 15 days R.I. more for the offence under section 498A IPC is also reasonable and appropriate.
46. Accordingly, the sentence so imposed on both counts of charges stands affirmed. The present Jail Appeal being devoid of merit is hereby dismissed.
Direction
47. Let a copy of this Judgement and Order together with L.C.R. be sent down to the learned trial court for information and necessary compliance.
48. Another copy of this Judgement and Order also be sent to the Superintendent of Medinipur central correctional home for information and communication of the gist of the order to the convict appellants. Photostat certified copy of this order, if applied for, be supplied on priority basis.
(Raghunath Ray, J.) I agree, (Ashim Kumar Banerjee, J.)