Calcutta High Court (Appellete Side)
Md. Jamiruddin Sk vs The State Of West Bengal on 18 December, 2014
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Justice Subhro Kamal Mukherjee And The Hon'ble Justice Subrata Talukdar CRA 95 of 2006 Md. Jamiruddin Sk.
-vs.-
The State of West Bengal
For the Petitioner : Sri Saswata Gopal Mukherji
For the State : Ms. Anasuya Sinha
Heard on : 14.11.2014
Judgement on : 18/12/2014
Subrata Talukdar, J.: This appeal is directed against the judgment and order dated 3rd December, 2005 passed by the Ld. 1st Additional Sessions Court, Murshidabad in Sessions Serial No. 418/2004 corresponding to Sessions Trial No. 3/January, 2005 convicting the accused/appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer rigourous imprisonment of 2 months. The facts are as follows:-
a) Information was received at Daulatabad P.S., Dist,-
Murshidabad on the 15th of March, 2003 of a homicidal death of the daughter of the complainant one, Sahamad Ali on the night between 14th & 15th of March, 2003. The original written complaint was treated as a FIR registered as FIR No. 26/2003 and one, S.I. Tanmoy Bose was directed to take up investigation for offences alleged under Section 302/201 of the IPC. The present accused/appellant, Jamiruddin Sk. was arraigned as the sole accused.
b) According to the complaint, the deceased, one Sarifa, who was the daughter of the complainant, had a love affair with the accused who also belonged to the same village of Gurudaspur, Paschimpara under Daulatabad P.S., Dist.- Murshidabad. Out of the love affair his daughter married the accused and three months prior to the lodging of the complaint she came to her paternal house complaining of ill-treatment at her matrimonial house.
c) Being a poor person the complainant could not afford anything to be given to the bridegroom during marriage and as a consequence Sarifa was subjected to torture as aforementioned. She was pressurised to bring a sum of Rs. 10,000/- from her father and given meal for half a day only. Furthermore, Sarifa was pregnant at the time she arrived at her paternal home.
d) It is further alleged that the accused, her husband, on the 14th of March, 2003 came to the matrimonial home where his wife, Sarifa was staying and had his meal there. After the meal the daughter and her husband retired to a portion of the house for rest. In the other sleeping area of the house the complainant slept with his wife.
The complaint alleges that waking up in the morning on the 15th of March, 2003 they found the accused missing from the side of their daughter and also missing from the house. The wife of the complainant, one Noor Jahan Bibi went to wake up their daughter, Sarifa from her bed and, or not getting any response for a long time came close to the daughter and touched her body. In spite of touching Sarifa she did not respond from the bed and Noor Jahan Bibi found the body to be cool whereupon she suspected something foul had happened and started shouting.
e) At the material point of time the complainant had left early in the morning to work in his fields. He was informed by his nephew, one Noor Tajul that his daughter, Sarifa was dead. On hearing such news the complainant rushed to his house and found the body of Sarifa lying on the bed with her head turned upwards. On examining the body he found bruises on the neck and the tongue was pressed by the teeth. The complainant also found a blue coloured glass poison like substance pouring out of the mouth of the dead body.
f) In view of the above noted facts and circumstances the complainant alleges that the accused had killed his daughter by strangulation. He further alleges that the accused fled by pouring some poison like substance into the mouth of Sarifa in order to hide the evidence of death by strangulation. He prayed for a thorough investigation into the unnatural death of his daughter.
g) Pursuant to the FIR the police held inquest over the body of Sarifa. From the inquest report mark Exbt. 6 at the trial the body was found lying on a mat in a room and ligature mark was found on the neck which stretched from the left side of the throat to the neck. Bruises were also seen on the neck just below the right ear showing evidence of pressure applied. Foam was found to be coming out from the nose of the deceased. No other injuries were found on the body.
h) The Investigating Officer (IO) prepared a rough sketch map of the P.O. From the rough sketch map it transpires that the P.O. is a part of the house of the complainant and, on three sides of the said house there lie cultivable fields.
The post mortem (for short PM report) mark Exbt. 2 in the trial concludes that death was homicidal and ante mortem in nature caused by strangulation. Ligature marks are found in the lower part of the neck and the victim was pregnant by about 28 weeks at the time of her death.
i) The accused was examined under Section 313 CrPC and his version is one of denial. To a specific question put to him by the Ld. Trial Court whether he had anything to state on the allegation that Sarifa was brought to her paternal home by her father due to heavy torture, the accused replied as follows:-
"She was taken."
To another question whether the accused was invited to dinner at the house of the in-laws on the date of occurrence the appellant has answered in the positive with the words "Yes, Sir".
To a third question whether the accused accepted that he wanted to stay back at the house of his in-laws after the dinner, the appellant had answered in the negative with the words "No, Sir".
PW1 is the complainant himself, Sahamad Ali. In his evidence he has reiterated the contents of the complaint. He has stated that the accused who was also his 'Jamai' had his house at a distance of two kms. from the house of the complainant. On the date of the occurrence the accused had expressed the desire to spend the night in the house of his in-laws. It is further stated by PW1 that he has two rooms in his house, out of which one room was lying vacant. On the fateful night his daughter and the accused occupied the vacant room.
PW1 has further deposed that in the morning when neither his daughter nor the accused came out of the room he asked his wife to call them. His wife removed the door built of split-bamboo separating the two sleeping areas of the house and found the accused to be absent. His daughter was lying on the bed with her face covered.
Both the complainant and his wife saw ligature marks of strangulation on the neck of his daughter. Thereafter the complaint was drafted by the nephew of the complainant, one Hafizul under instructions of the complainant. The contents of the complaint were read over by Hafizul and explained to the complainant before he put his LTI on the same and submitted it to the police station.
In his cross-examination PW1 has reiterated the fact that he did not have the capacity to pay the sum of Rs. 10,000/- demanded by the accused from his daughter. He has deposed that his house is built of bamboo with a roof of tiles and there is only one room. He has also reiterated that on the relevant date and night the accused came to his house and spent the night there. He has stated that the accused is not a physically handicapped person. In the morning while working in the fields it was reported to him that the accused had left their house after killing his daughter.
PW2 is Noor Jahan Bibi, the wife of the complainant. In her evidence PW2 has reiterated the essence of the charge in the complaint as well as reflected in the evidence of her husband, PW1. She has stated that the fatal incident took place 3 months after the marriage of Sarifa with the accused. She deposed that after the marriage Sarifa went to live with her husband and became a victim of torture. The accused tortured her because he demanded Rs. 10,000/- to be brought by her from her father. Being poor people the complainant and his wife could not arrange for that sum of money and a few days prior to the date of the incident they brought their daughter to their house.
PW2 has further deposed that they invited the accused to their house on the relevant date and the accused had dinner. He expressed his desire to spend the night in their house and accordingly Sarifa and her husband occupied one room whereas the complainant and his wife occupied the other room. On the following morning the accused was found to be absent and her daughter lying with marks of strangulation on her neck. The PW2 also deposed that she sent her second daughter, Nasima to inform her husband who was working in the fields and local villagers also came and saw the dead body. In her cross-examination PW2 has maintained that the accused came to their house on the relevant date. However, she admits that prior to that date he never visited the house of the complainant. She states that there is space in the house to arrange for a separate bed in a separate area. She further deposes that early in the morning she sent their another daughter to her husband to report about the incident. She did not see anyone else within the vicinity of the room and the house who could be responsible for the death of her daughter excepting the accused. She denies that the accused has been arraigned in a false case.
PW3 is a constable attached to Daulatabad P.S. and he has deposed that on the 15th of March, 2003 he transported the dead body of deceased Sarifa Bibi from Berhampore New General Hospital to police morgue.
PW4 is the doctor, one Dr. Ranjit Roy Chowdhury who held the post mortem over the dead body. In his evidence he has deposed that the face of the deceased was swollen and congested. Her eyes were open and congested. Ligature marks were seen on the lower part of her neck. The ligature marks were ante mortem in nature.
PW4 has further deposed that the death was homicidal, ante mortem and caused by strangulation. The deceased was pregnant for about 28 weeks and there was no sign of poisoning in the body. PW4 has ruled out suicide as a cause of death. He has further deposed that no poisonous material was found in the body of the deceased.
PW6 is the IO. In his evidence he has narrated a clear stream of events from the time of the filing of the complaint and its registration as a formal FIR. The IO has deposed that he prepared the rough sketch map which was marked Exbt. 5 and he has examined the available witnesses under Section 161 CrPC. Inquest was held over the dead body and was marked as Exbt. 6. The accused was arrested from his house and produced before the Court and on 18th of March, 2003, one Rejjak was also arrested and forwarded to the Court. Charge sheet was thereafter submitted.
In his cross-examination the IO has strongly denied that the investigation conducted by him was merely perfunctory. He has deposed that the accused was arrested from his fields on the 16th of March, 2003 at 11:30 hours.
Shri Saswata Mukherji, Ld. Counsel appearing for the appellant has taken this Court to the deposition of PW2 as already discussed hereinabove in this judgment. He submits that in the facts and circumstances of the case no presumption of an offence committed under Section 498A IPC can be said to have been made out against the accused.
It is the further submission of Shri Mukherji that the evidence of PW1 is based on hearsay. Ld. Counsel argues that the evidence of PW1 being hearsay raises serious doubts about the complicity of the accused in the murder since admittedly PW1 along with other persons, including the PW2 were present under same roof when the incident occurred.
Shri Mukherji asserts that no independent witnesses have been examined to corroborate the evidence of PWs 1 and 2 that the accused came to the house of the complainant on the fateful date. He submits that although the fatal incident is alleged to have occurred within a small space in the proximity of PWs 1 and 2, none of them have directly witnessed the accused to have committed the alleged offence. The evidence of both PWs 1 and 2 is based on the presumption that it is only the accused who can be connected to the offence although the accused in his statement under Section 313 CrPc has stated that although he accepted the invitation for the meal, did not stay back at the house of the complainant on the fateful night.
Shri Mukherji submits that the plain reading of the evidence of PWs 1 and 2 is full of conjectures and is not in the category of evidence which can be described as unimpeachable to convict the accused of the crime.
Per contra Ms. Anasuya Sinha, Ld. Counsel appearing for the State responding to the allegation that no finger prints of the accused have been found on the neck of the deceased connected to the ligature marks, submits that this is not a case of manual strangulation and therefore there is no requirement to take finger prints.
She has further argued that there is no necessity to place additional evidence in support of the prosecution case when the evidence of both PWs 1 and 2 is complete to connect the accused with the crime. She asserts that from the stand taken by the defence as evident from the cross-examination it does not appear that there was the entry of any outsider or third party into the room when the incident occurred.
Having heard the parties and considering the materials on record, at the very outset this Court is conscious of the requirement by the prosecution to produce unimpeachable evidence to establish a charge under Section 302 IPC. It has been reiterated time and again by the Hon'ble Apex Court that mere existence of a motive to commit the crime in the absence of unimpeachable evidence connecting the accused to the crime is not sufficient to arrive at a finding of conviction.
In a charge under Section 302 IPC the Court must conceive of a situation where from every reasonable stand point or hypothesis the accused is found to be connected to the crime.
Useful reference in this regard may be made to the following decisions of the Hon'ble Apex Court:-
2002 (7) SCC 317 in the matter of Ashish Batham vs. State of M.P. AIR 1984 SC 1622 in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 2000 (8) SCC 598 in the matter of State of U.P. vs. Hari Mohan & Ors.
2008 (3) SCC 210 in the matter of Sattatiya Alias Satish Rajanna Kartalla vs. State of Maharashtra In Arvind alias Pappu Vs. State (Delhi Administration) reported in 1999 (4) SCC 486 the Hon'ble Apex Court had occasion to deal with facts similar to the present case.
In Arvind's Case there was a long standing enmity between the appellant and the deceased arising out of their past litigation. The appellant was having interest in a factory business being run at the place of occurrence in Delhi. The appellant met the deceased and asked him to come to Delhi by assuring him a job. Both of them were last seen together waiting for a bus.
On the same date at about 9 pm the appellant brought the deceased to his factory. The deceased was drunk and the appellant made him lie down on a cutting table. Then the appellant asked the workers to go to sleep and the workers left leaving behind only the appellant and the deceased in the room. The room had a shutter.
On the next morning when the shutter was opened the deceased was found lying dead in a pool of blood and the appellant was missing. The murder had been committed at about 2 am. The appellant surrendered in Court after about one year and six months.
The appellant was convicted by the Trial Court which was affirmed by the High Court. The Hon'ble Apex Court upholding the conviction held at Paragraphs 12 & 13 as follows:-
"12. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of this Court According to that standard the circumstances relied. upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt as to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. To quote a few decisions of this Court in this regard reference may be made to the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1964 (4) SCC 116; Balwinder Singh Vs. State of Punjab AIR '987 SC 350; Dhananjoy Chatterjee alias Dhana Vs. State of West Bengal 1994 (2) SCC 220; Laxman Naik Vs. State of Orissa 1994(3) SCC 381 and Brijlala Pd. Sinha Vs. State of Bihar 1998(5) SCC 699.
13. Now we come to the question whether the evidence in the case on hand satisfies the principles and tests laid down in the aforementioned decisions. We nave carefully perused the judgments of the Sessions Court and the High Court confirming the same. We have also perused the of the witnesses, to satisfy ourselves that the assessment of the evidence by the Courts below does not suffer from any serious infirmity. As noted earlier the circumstances relied upon by the prosecution have been established by the evidence of the workers in the factory including Jaspal PW-l, Anil Kumar PW-2, Suresh PW-3, Daulat Ram PW-4, Ram Prasad PW-6, Gaya Prasad PW-18 and the nephew of the deceased vijay Ranjan PW-9. On the facts and circumstances of the case the presence of these witnesses at the place of occurrence at the relevant time was natural. They had no axe to grind against the appellant. There is no reason why they should give false evidence against him. From their evidence the circumstances pointing to the involvement of the appellant in the killing of the deceased have definitely been established. Further the appellant was untraced from the day following the incident for about one and half years. The circumstances taken cumulatively point, to the only hypothesis of guilt of the appellant. There is no material on record pointing toward's his innocence. On such materials the Courts below rightly held that the prosecution had established the case against the appellant. The judgment of the Sessions Judge as confirmed by the High Court warrants no interference. Accordingly the appeal is dismissed."
In Paramjit Singh Alias Pamma Vs. State of Uttarkhand reported in 2010 (10) SCC 439, the Hon'ble Apex Court at Paragraphs 10, 11, 12, 13 & 14 held as follows:-
"10. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab v. Jagir Singh Baljit Singh & Anr., AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. v. State of West Bengal,(2003) 12 SCC 377; and Aloke Nath Dutta & Ors. v. State of West Bengal, (2007) 12 SCC 230).
11. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637, this Court observed :
"........considered as a whole the prosecution story may be true; but between `may be true' and `must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted]."
12. Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt.
Circumstantial Evidence:
13. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis supplied)
14. A similar view has been reiterated by this Court in State of Uttar Pradesh v. Satish, (2005) 3 SCC 114; Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430; Ramesh Bhai & Anr. v.
State of Rajasthan, (2009) 12 SCC
603; Subramaniam v. State of Tamil Nadu &
Anr.,(2009) 14 SCC 415; and Babu v. State of Kerala, JT 2010 (8) SC 560, observing that the evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable."
With reference to the statements made by the accused under Section 313 CrPC this Court finds it useful to reproduce the observations of the Hon'ble Apex Court in Sanatan Naskar and Another Vs. State of West Bengal reported in 2010 (8) SCC 249 that the scope of Section 313 CrPC is wide and not a mere formality. Answers given by the accused u/s 313 CrPC are strictly not evidence but relevant for finding the truth.
In the light of the above discussion this Court is persuaded by the following chain of facts and circumstances:-
I. That the evidence of PWs 1 and 2 is consistent with regard to the chain of events culminating in the acceptance of the invitation by the accused of a meal at their home. II. That a prima facie case of marital estrangement between their daughter and the accused has been made out by the PWs 1 and
2. It has been adequately demonstrated in their evidence that prior to her unfortunate death she took shelter at her parental home to escape the demands and pressure of her marital home.
III. Even the accused in his statement before the Ld. Court under Section 313 CrPC admits to acceptance of the invitation to dinner on the date of occurrence, that is the night between 14th of March, 2003 and 15th of March, 2003.
IV. The evidence of PWs 1 and 2 is consistent with the facts narrated in the written complaint which was registered as a FIR. V. It is not in dispute that the death was homicidal in nature and caused by strangulation by ligature. It is not improbable in the ordinary course of human nature that after the elaborate meal on the night of 14th of March, 2003, the accused would have stayed back in his matrimonial home although he denies it in his statement under Section 313 CrPC.
VI. Both PWs 1 and 2 who, as parents of the deceased, have offered the best evidence on behalf of the prosecution give a consistent version of the events following the joint meal on the night of 14th of March, 2003. The PWs 1 and 2 could not be shaken from their evidence and were not given any suggestion during cross- examination denying the presence of the accused at their house on the date of occurrence.
VII. The minor discrepancies notwithstanding with reference to the situs of the PO with reference of the number of sleeping areas/rooms in the house and the proximity of one to the other, it does emerge from sketch map that the PO is a separate sleeping area of the house. The involvement of the accused in the crime becomes all the more apparent as motive was attributed to him of ill treatment causing the deceased to shift to her parental home coupled with fact that he was the last person seen to be in the exclusive company of the deceased. VIII. N.G. Modi's acclaimed treatise on Medical Jurisprudence and Toxycology (20th Edition) in its chapter on death by strangulation at Page 156 observes as follows:-
"Lastly it must be borne in mind that strangulation may be committed without any noise or disturbance; even if other persons are in close vicinity, they may not be aware of the act. This may happen in garroting, where a victim is suddenly overpowered from behind by using a rope, Dhoti, or hands."
It is relevant to note that the PM report of the deceased found the cause of her death by strangulation with ligature. However, no effects of poisoning could be found.
According to Modi, when strangulation results in asphyxia it is not unusual to find the lips to be blue and a foam escaping the mouth and the nostrils. The tongue is occasionally found to be bitten by teeth.
The inquest report shows the deceased with symptoms similar to what has been described in Modi's book and noted in the PM report which is categorical that death was ante mortem and homicidal.
IX. No suggestion has been given to the prosecution in the cross-
examination of the involvement of an outsider or a third party at the PO on the date of occurrence. In spite of denial by the accused as recorded in his statement under Section 313 CrPC asserting his absence at the PO on the fateful night, but accepts the fact of his invitation to dinner, the accused shows no such bravado at the stage of sentencing. When called upon by the Ld. Court to make his statement on the maximum and minimum punishment for murder the accused only pleads that he is poor, without any work, without parents and has one sister. Undoubtedly the Ld. Trial Court on assessment of the evidence pointing to his close and sole proximity to the deceased on the night of the date of occurrence found him guilty. X. This Court is also sufficiently persuaded by the argument of Ld. Counsel for the State that in the face of the best evidence advanced by the PWs 1 and 2 it was not necessary to bring additional evidence. Ld. Counsel has also correctly argued that in a case of non-manual strangulation the presence of finger- prints becomes secondary.
Ld. Counsel has also pointed out to the failure of the defence to discredit the prosecution by suggesting the role of a third party at that deep hour of night at the place of occurrence on the fateful day.
In the backdrop of the above discussion the Court finds that the facts and circumstances which have emerged at the trial are consistent only with the hypothesis of the guilt of the accused and cannot be explained by any other contrary hypothesis. Finding the chain of events and circumstances to be of a conclusive nature and qua the presence of the accused as the last person with the deceased, in the considered view of this Court the evidence shows that in all human probability the act must have done by the accused. Accordingly, the judgment and order of conviction dated 3rd December, 2005 is not interfered with.
CRA 95 of 2006 fails. The appeal is accordingly dismissed. There will be, however, no order as to costs.
Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subhro Kamal Mukherjee, J.) (Subrata Talukdar, J.)