Calcutta High Court (Appellete Side)
Sukhendu Sur & Ors vs The State Of West Bengal on 13 March, 2014
Author: R. K. Bag
Bench: Tapen Sen, R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Tapen Sen,
And
Hon'ble Justice R. K. Bag,
CRA No. 520 of 2008
Sukhendu Sur & Ors.
Vs.
The State of West Bengal
For the Appellants : Mr. Sudipto Maitra, Advocate
Mr. Sandipan Ganguly, Advocate
Mr. Vijay Verma, Advocate
For the State : Mr. Manjit Singh, Advocate
Mrs. Anasuya Sinha, Advocate
For Defacto Complainant : Mr. Kalyan Bandhopadhyay,
Senior Advocate
Heard on : 17.02.2014, 19.02.2014, 20.02.2014,
24.02.2014, 25.02.2014, 26.02.2014,
27.02.2014, 28.02.2014.
Judgment on : 13.03.2014
R. K. Bag, J.
This appeal arises out of judgement and order dated 29.07.2008 and 30.07.2008 respectively passed by Learned Additional Sessions Judge, Fast Track, 1st Court, Contai in Sessions Trial Case No.VII/January/2004 and Sessions Trial Case No.VII A/January/2004, by which Learned Judge held the accused persons guilty of the charge under Sections 498A/34, 302/34 and 201/34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and other term imprisonment and fine.
2. The fact of the case made out by the prosecution, in brief, is that on 06.02.2002 one Soma Sur, daughter of the defacto complainant, Aswini Kumar Maity, was married to the accused Sukhendu Sur in the house of her maternal grand-father at Athilagari, Contai. At that time Soma was studying in the third year of the four-year degree course in Information Technology at Salt Lake in the Manipal Academy of Brains and Career. The marriage took place against the will of the parents of Soma and they did not participate in the marriage ceremony. After marriage Soma started living in a hostel in Kolkata in order to continue her studies, but she used to stay for about 8 to 10 days in a month in her matrimonial home at Contai along with her husband, parents-in-law and sister-in-law. After 4 to 5 months of marriage the accused Sukhendu Sur asked Soma to bring Rs.2,00,000/- from her father for starting a business by him. As Soma pleaded her inability to approach her father for the money demanded by the accused Sukhendu, the accused persons started inflicting torture on her. The accused persons also demanded Rs.50,000/- which they spent for the education of Soma after her marriage. The accused persons used to beat Soma. The accused Sukhendu threatened to divorce her in order to coerce her to bring money. The accused persons also did not give proper food to Soma and she had to spend her days in misery for insultation. Soma communicated these facts to her uncle, Dr. Anil Kumar Maity personally when she met him and also over phone. Soma also communicated these facts to Anjana Maity, her mother and Bhaskar Jana, her maternal grand-father when she visited their houses. Dr. Anil Kumar Maity went to the matrimonial home of Soma on 2/3 occasions for rapprochement and amicable settlement of the matrimonial dispute and the torture abated temporarily, but started again. On 15.08.2003 Soma visited the house of her maternal grand-father and narrated the incidents of torture inflicted on her by the accused persons. On 21.08.2003 at about 2:10 a.m. Dr. Anil Kumar Maity and the parents of Soma got information from Contai Police Station over phone that Soma had committed suicide.
3. On 21.08.2003 at about 3:50 a.m. Bhaskar Jana, maternal grand-father of Soma gave an application to the officer-in-charge of Contai Police Station, requesting him not to dispose of the dead body of Soma till arrival of the parents of Soma from Kolkata. Ultimately, one U.D. Case No.134 dated 21.08.2003 was started and inquest was held by Nimai Chand Haldar, Executive Magistrate on 21.08.2003 at 12:00 noon. The post- mortem of the dead body of Soma was also conducted on 21.08.2003 at 4:00 p.m. in the Sub-divisional Hospital at Contai. Thereafter, on 22.08.2003 at about 12:15 p.m. the specific criminal case being Case No.105 of 2003 was started against the accused persons under Sections 498A/302/201 of the Indian Penal Code. The police took up the investigation, but the progress of investigation was not satisfactory and as such the Criminal Investigation Department, West Bengal had to take over the investigation. Ultimately, the charge sheet was submitted against the accused persons by the Investigating agency and the Court framed charge against the accused persons under Sections 302/34 of the Indian Penal Code, alternatively under Section 304B of the Indian Penal Code and also under Sections 201/34 and 498A/34 of the Indian Penal Code and the accused persons faced trial for the said offences.
4. The defence case culled out from the evidence of the defence witnesses and from the examination of the accused persons under Section 313 of the Code of Criminal Procedure is that the accused persons are innocent and that they have been implicated in this case on false allegation due to grudge and enmity between the accused persons and the parents of Soma. The specific defence case is that Sukhendu married Soma against the will of the parents of Soma and that the accused persons had borne the expenditure for prosecuting the study of Soma after the marriage. The relation between Soma and Sukhendu was very cordial. On 20.08.2003 Soma, Sukhendu and Rabi Shankar Chandra alias Babu, son of brother-in-law of the accused Hridayangshu Sur went to the temple for worship. When they returned from the temple at about 7:30 p.m. to 8:00 p.m. Soma and Sukhendu came to learn from the sweeper of the Bank, Netai Chandra Jana about the invitation for dinner in the house of Purnendu Chandra, brother-in-law of the accused, Hridayangshu Sur. While Sukhendu and Babu alias Rabi Shankar waited in the downstairs, Soma went to the upstairs of the quarters of Contai Co-operative Bank to get refreshed. As Soma was not getting down, Sukhedu went to the upstairs and found the door of the bath room locked from inside and heard the sound of falling water from the bath room. When Soma did not respond to the call of Sukhendu, he went back to the downstairs, called Babu alias Rabi Shankar and Netai Chandra Jana, Sweeper of Contai Co-operative Bank, opened the door of the bath room by force and found Soma lying inside the bath room. She was shifted to the verandah of the quarters and thereafter the incident was reported to the parents and sister of the accused Sukhendu through Netai Chandra Jana, as they were already in the house of Purnendu Chandra for attending the invitation for dinner. Thereafter, Purnendu Sur, brother of the accused Sukhendu arrived at the place of occurrence from Haldia and found Soma lying dead on the verandah of the quarters and he went to call doctor, but no doctor was available. The incident was reported to the police.
5. Learned Judge of the Trial Court considered the evidence adduced by both parties and came to the conclusion that the cause of death of Soma was asphyxia which was ante-mortem and homicidal in nature and that the accused persons being the husband, parents-in-law and sister-in-law of the deceased Soma were guilty of committing murder of Soma with common intention of causing her death. Learned Judge also held the accused persons guilty of causing disappearance of evidence and subjecting Soma to cruelty for demand of money. All the accused persons were sentenced to suffer imprisonment for life and also imprisonment for various terms and to pay fine of various amount of money, in default to suffer again simple imprisonment for various terms.
6. The appellants - Sukhendu Sur, husband of Soma, Hridayangshu Sur, father-in-law of Soma, Chabi Rani Sur, mother-in-law of Soma and Sanchita Sur, sister-in-law of Soma have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the judgement of conviction and order of sentence passed by Learned Judge of the Trial Court. Accordingly, the points for consideration in this appeal are:
(i) whether the accused persons committed murder of Soma with common intention, subjected her to cruelty for demand of money and caused disappearance of evidence and; (ii) whether the judgement and order passed by Learned Judge of the Trial Court is liable to be set aside.
7. To bring home the charge under Sections 302/34 of the Indian Penal Code, the prosecution will have to establish beyond reasonable doubt: (i) that the death of Soma Sur was homicidal in nature and; (ii) that the accused persons killed Soma Sur with common intention to cause her death.
Mr. Sudipto Maitra, Learned Counsel for the appellants submits that it is the duty of the prosecution to prove up to the hilt that the death of Soma Sur was homicidal in nature. Relying on pages 453 and 454 of Modi's "A Text book of Medical Jurisprudence and Toxicology", 24th Edition, 2011, Mr. Maitra further submits that the medical evidence adduced in this case by the prosecution is insufficient to form opinion about death by asphyxia. It is relevant to point out that the specific defence of the accused persons is that Soma met an accidental death inside the bath room by falling on the steel bucket. Mr. Manjit Singh, Learned Public Prosecutor has pointed out from the evidence on record that the accused Hridayangshu Sur being an employee of Contai Co-operative Bank communicated to his higher authority of the Bank viz., P.W.3, Jyotirmay Kar on 20.08.2003 at about 10:45 p.m. that his daughter-in-law Soma committed suicide, who in turn communicated this information to P.W.4 and P.W.7 who are also Directors of the said Bank. Similarly, Lal Mohan Pradhan (P.W.20), night guard of the Bank came to learn from accused Chabi Rani Sur on 20.08.2003 at about 10:45 p.m. that her daughter-in-law Soma committed suicide in the bath room. It is, therefore, necessary to evaluate the entire evidence on record to come to the conclusion whether the death of Soma Sur was accidental or suicidal or homicidal in nature.
8. The U.D. Case No.134 dated 21.08.2003 was started at Contai Police Station on the basis of the written application submitted by Bhaskar Jana (P.W.2), maternal grand-father of the deceased Soma on 21.08.2003 at about 3:15 a.m. (Exhibit-10). As Soma Sur died unnatural death within seven years of her marriage, the inquest is to be conducted by one Executive Magistrate as laid down in Section 176 of the Code of Criminal Procedure, 1973. One Nimai Chand Haldar (P.W.5), Executive Magistrate attached to Sub-divisional Office, Contai conducted inquest on 21.08.2003 at 12:00 noon in presence of two witnesses namely, Dr. Anil Kumar Maity (P.W.12) and A.S.I. Dibakar Dolui (P.W.25) in the quarters of the accused persons i.e. 2nd Floor of Contai Co-operative Bank Limited. The observations made by P.W.5 in his oral testimony and also in the inquest report (Exhibit-4) prepared by him are as follows: (i) the dead body was lying on the floor of verandah of the quarters; (ii) teeth were visible from outside and rows of teeth were pressed against each other; (iii) there were scratches like injury mark on the left side of neck; (iv) there was black spot mark on the back of the neck; (v) there were stains of blood on the back right side of the body; (vi) both the ears were stained with blood; (vii) scratch marks were visible over both the breasts; (viii) wearing apparels of the deceased were nighty and panty. These wearing apparels of the deceased were subsequently seized under seizure list marked Exhibit-13. Nothing is on record to disbelieve the evidence of P.W.5, which is corroborated from the inquest report marked Exhibit-4.
9. The dead body of Soma Sur was identified before Autopsy Surgeon by Gopal Chandra Das, Constable No.421 (P.W.26). Dr. Arun Majumdar (P.W.10) and Dr. Tarun Kanti Panigrahi (P.W.11) conducted post-mortem of the dead body of Soma on 21.08.2003. Mr. Sudipto Maitra, Learned Counsel for the appellants submits that P.W.11, Tarun Kanti Panigrahi had no authority for holding post-mortem examination as he was not authorised by the higher authority in the administration of the Health Department to conduct post-mortem examination on the dead body of Soma, when post-mortem examination is done by P.W.10, Dr. Arun Majumdar. Relying on the paragraph mentioned below in page 639 of Modi's "Medical Jurisprudence and Toxicology" (23rd Edition), Section-I, Mr. Manjit Singh, Learned Public Prosecutor submits that circular has been issued from Home Ministry of Government of India that panel of two doctors must carry out post-mortem on the dead body of the married woman dying unnatural death within seven years of marriage: "According to a circular from the Home Ministry in India, a panel of two doctors, are now required to carry out the post-mortem on the body of a married woman dying of burns (or other reasons) within seven years of her marriage or if her age was less than 30 years at the time of her death in suspicious circumstances. All such cases are investigated under Section 304B of the IPC." The circular of the Ministry of Home Affairs, Government of India quoted in Modi's "Medical Jurisprudence and Toxicology" may not be strictly applicable in the present case, because the present case does not relate to unnatural death by burn injuries. However, no prejudice is caused to the accused persons for conducting post-mortem on the dead body of Soma by two doctors of the Sub-divisional Hospital, Contai.
Nor will the accused persons be prejudiced for holding post- mortem on the dead body of Soma by Dr. Tarun Kanti Panigrahi (P.W.11) along with Dr. Arun Majumdar (P.W.10) without proper authorisation in this behalf by the higher officers in the administration of the Health Department, particularly when Dr. Tarun Kanti Panigrahi himself was the Additional Chief Medical Officer of Health of Contai Sub-division at the relevant point of time. In view of the above findings we do not find any merit in the submission made by Mr. Maitra, Learned Counsel for the appellants.
10. Dr. Arun Majumdar (P.W.10) and Dr. Tarun Kanti Panigrahi (P.W.11) conducted the post-mortem on the dead body of Soma on 21.08.2003 at 4:00 p.m. in the Sub-divisional Hospital at Contai. The post-mortem report was prepared by P.W.10, Dr. Arun Majumdar in consultation with P.W.11, Dr. Tarun Kanti Panigrahi. It appears from the oral testimony of P.W.10 and P.W.11 and from the post mortem report (Exhibit-8) that the following observations were made by them with regard to post- mortem of the dead body of Soma: (i) body build average; (ii) decomposition just started; (iii) rigor mortis passed off; (iv) one abrasion extending from left posterior lateral angle to right mastoid eminence running over nape of the neck, breadth one inch; (v) underneath parchmentisation present from one end to the other end; (vi) no injury mark on front side of neck; (vii) both lungs were congested; (viii) mouth pharynx and oesophagus healthy; (ix) no protrusion of tongue; (x) stomach contained 50 ml. of fluid - acidic smell; (xi) death in our opinion is due to asphyxia, ante-mortem and homicidal in nature. Asphyxia is caused by roughly hard object by pressure exerted on the back side of the neck obliquely in the right side sleeping position of the victim; (xii) time of death more than 12 hours and within 18 hours from post-mortem of the dead body.
11. On scrutiny of evidence of P.W.10 and P.W.11 it appears that P.W.10 had less experience in conducting post-mortem on the dead body and that is why he had to take the help and guidance of P.W.11. Both of them signed on the post-mortem report. The cross-examination of P.W.11 at the bottom of page 3 reveals that generally rigor mortis passes off in between 12 and 15 hours in summer and in between 15 and 20 hours in winter. In the instant case death took place in the month of August in the coastal region of Contai which must be very warm and humid. Since rigor mortis passed off and decomposition of the dead body just started at the time of conducting post-mortem on 21.08.2003 at 4:00 p.m., by way of back calculation of time and by relying on the opinion of the Autopsy Surgeons (P.W.10 and P.W.11) we can safely ascertain that the approximate time of death must not be earlier than 10 O'clock in the night on 20.08.2003. Both the Autopsy Surgeons (P.W.10 & P.W.11) have also stated that the time of death will be more than 12 hours and within 18 hours from the time of post-mortem Examination at 4:00 p.m. on 21.08.2003 i.e. the time of death cannot be earlier than 10 O'clock in the night on 20.08.2003.
12. Mr. Maitra, Learned Counsel for the appellants has pointed out from the evidence of P.W.10 and P.W.11 that reasons for arriving at the opinion about cause of death are not disclosed in the post-mortem report. P.W.10, Dr. Arun Majumdar has stated at the bottom of page 8 of the cross-examination that the Autopsy Surgeons generally do not write the reasons for formation of opinion in the post mortem report. Learned Counsel for the appellants has also pointed out from the evidence that abrasion on the back portion of the neck might have been caused by falling on the steel bucket accidentally inside the bath room and the abrasion may be post-mortem and that death might have been caused due to cardiogenic shock and that asphyxia may be ruled out when hyoid bone and thyroid cartilage were intact. P.W.11, Dr. Tarun Kanti Panigrahi has clarified in page 23 of his cross-examination that in asphyxial death the fracture of hyoid bone and thyroid cartilage is not always necessary. He has ruled out the cause of death by cardiogenic shock in page 7 of his cross-examination by giving reason that heart was dissected and found to be healthy. He has also pointed out in page 4 of his cross-examination that parchmentisation would not be possible in case of post mortem abrasion. On scrutiny of the inquest report prepared by P.W.5 and the evidence of both Autopsy Surgeons, P.W.10 and P.W.11 we find that there were scratches over both the breasts. There were stains of blood on the right side of the back of the body. Both the ears were stained with blood, apart from scratch mark on the back of the left side of the neck. These injuries coupled with the abrasion extending from left posterior lateral angle to right mastoid eminence running over nape of the neck, having breadth of one inch and having underneath parchmentisation from one end to the other and having both the lungs congested will justify the opinion of the Autopsy Surgeons about cause of death by asphyxia.
13. Mr. Singh, Learned Public Prosecutor has urged this court to consider the conduct of the accused persons for coming to the conclusion whether the death is accidental, suicidal or homicidal. On the other hand, Mr. Maitra, Learned Counsel for the appellants has vehemently urged this court to consider only medical evidence for the purpose of coming to the conclusion whether the death is accidental, suicidal or homicidal. With the above background of submissions made by Learned Counsels representing the respective parties, it will be relevant to mention the following paragraph from Taylor's "Principles and Practice of Medical Jurisprudence", (12th Edition-1965), Volume-I, page 396: "Sometimes circumstantial evidence is almost the only ground for a suggestion either of suicide or of homicide: time, place, locked doors, fastened windows, motives, etc., etc., are all important factors". It is, therefore, necessary to look into the circumstantial evidence along with medical evidence to decide whether asphyxia is accidental, suicidal or homicidal. In the instant case, the defence of the accused persons is that the deceased Soma was found inside the bath room after breaking open the door of the bath room by force on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. Naturally, the latch fixed inside the door of the bath room must be found in broken condition. P.W.29, S.I. Ashok Kumar Mondal of C.I.D., West Bengal has specifically stated at the bottom of page 6 of his cross-examination that it does not seem to him that the latch fitted with the door of the bath room is in crack condition. The photographer, P.W.21 took the photograph of the inner side of the door of the bath room along with the latch which is marked Exhibit-II/4. P.W.29 has again reiterated at the bottom of page 35 of his cross- examination that the latch inside the door of the bath room was intact. This aspect of evidence of P.W.29 is corroborated by the photograph marked Exhibit-II/4. This nullifies the defence case that the deceased Soma Sur was found inside the bath room after breaking open the door of the bath room by force as stated by defence witnesses and P.W.22, Netai Chandra Jana who was declared hostile and permitted to be cross-examined by the prosecution and as stated by the accused persons under Section 313 of the Code of Criminal Procedure, 1973.
14. P.W.3, Jyotirmay Kar is the Chairman of Contai Co-operative Bank and MLA of Contai North Assembly Constituency. P.W.4, Dilip Kumar Maity is the Director of Contai Co-operative Bank. P.W.7, Sailaja Kumar Das is also Director of Contai Co-operative Bank and former MLA of Contai South Assembly Constituency. It is the consistent evidence of P.W.3, P.W.4 and P.W.7 that on 20.08.2003 at 10:45 p.m. the accused Hridayangshu Sur i.e. the father-in-law of the deceased Soma informed P.W.3 over phone that Soma committed suicide. P.W.3 in turn communicated this information to P.W.7 and P.W.4 and also to the duty officer of Contai Police Station. It is also the consistent evidence of P.W.12, Dr. Anil Kumar Maity, uncle of Soma and other witnesses examined by the prosecution that the police of Contai Police Station informed them over phone on 21.08.2003 at about 2:10 a.m. that Soma committed suicide. P.W.20, Lal Mohan Pradhan who happens to be the night guard of Contai Co- operative Bank has categorically stated that on 20.08.2003 at about 10:45 p.m. the accused Chabi Rani Sur i.e. the mother-in- law of the deceased Soma came down from the quarters of the Bank and asked him to bring medicine for high pressure of her husband by giving a chit and money and told him about the mishap in the family, namely her daughter-in-law Soma committed suicide. The accused Hridayangshu Sur used to reside in the quarters of Contai Co-operative Bank i.e. at the top floor of the building of the Bank in his capacity as the Secretary of the said Bank. The accused Hridayangshu Sur conveyed the message of suicide of Soma to his higher authority in the Bank i.e. P.W.3, P.W.4 and P.W.7 on 20.08.2003 at 10:45 p.m. Similarly, the accused Chabi Rani Sur also casually communicated the fact of suicide of Soma to the night guard of the Bank on 20.08.2003 at 10:45 p.m. Nothing transpires from the cross-examination of P.W.3, P.W.4, P.W.7 and P.W.20 to disbelieve their evidence. Nor is there any animosity between the accused persons and these witnesses. The conduct of the accused persons reflected in the evidence of P.W.3, P.W.4, P.W.7 and P.W.20 coupled with the evidence that the latch fixed inside the door of bath room situated on the top floor of the quarters of the Bank was intact as narrated by P.W.29 and corroborated by the photograph (mat Exhibit-II/4) give a go by to the theory of accidental death of the deceased Soma, by falling inside the bath room on 20.08.2003 at about 7:30 p.m. to 8:00 p.m.
15. The differences between asphyxial death by hanging and asphyxial death by strangulation are given in the following tabulated form in Modi's Medical Jurisprudence and Toxicology (23rd Edition) Section-I, pages 583 and 584:
Hanging Strangulation
1. Mostly suicidal. 1. Mostly homicidal.
2. Face-Usually pale and petechiae 2. Face-Congested, livid and
rare. marked with petechiae.
3. Saliva-Dribbling out of the mouth 3. Saliva-No such dribbling.
down on the chin and chest.
4. Neck-Stretched and elongated in 4. Neck-Not so.
fresh bodies.
5. External signs of asphyxia, 5. External signs of asphyxia,
usually not well marked. very well marked (minimal if
death due to vasovagal and
carotid sinus effect).
6. Bleeding from the nose, mouth 6. Bleeding from the nose,
and ears very rare. month and ears may be
found.
7. Ligature mark-oblique, non- 7. Ligature mark-Horizontal or
continuous placed high up in the transverse continuous, round
neck between the chin and the the neck, low down in the
larynx, the base of the groove or neck below the thyroid, the
furrow being hard, yellow and base of the groove or furrow
parchment-like. being soft and reddish.
8. Abrasions and ecchymosis round 8. Abrasions and ecchymosis
about the edges of the ligature round about the edges of the
mark, rare. ligature mark, common.
9. Subcutaneous tissues under the 9. Subcutaneous tissues under
mark - White, hard and glistening. mark - Ecchymosed.
10. Injury to the muscles of the 10. Injury to the muscles of
neck -Rare. the neck -Common.
11. Carotid arteries, internal 11. Carotid arteries,
coats ruptured in violent cases of internal coats ordinarily
a long drop. ruptured.
12. Fracture of the larynx and 12. Fracture of the larynx
trachea -Very rare and that too in and trachea -Often found also
judicial hanging. hyoid bone.
13. Fracture - dislocation of the 13. Fracture - dislocation of
cervical vertebrae -Common in the cervical vertebrae -Rare.
judicial hanging.
14. Scratches, abrasions and 14. Scratches, abrasions
bruises on the face, neck and fingernail marks and bruises
other parts of the body -Usually on the face, neck and other
not present. parts of the body -Usually
present.
15. No evidence of sexual 15. Sometimes evidence of
assault. sexual assault.
16. Emphysematous bullae on 16. Emphysematous bullae
the surface of the lungs -Not on the surface of the lungs -
present. May be present.
From inquest report and observations of the Autopsy Surgeons,
P.W.10 and P.W.11 we find that there are very well marked external signs of asphyxia i.e. abrasion extending from left posterior lateral angle to right mastoid eminence running over nape of the neck having breadth of one inch and having underneath parchmentisation from one end to the other. We also find indication of bleeding from both ears. We also find the abrasion which is horizontal running over the nape of the neck and not oblique or non-continuous placed high up in the neck. We find parchmentisation which is nothing but ecchymosis from one end to the other end. Moreover, we find scratch on both the breasts and blood stains on back right side of the body which indicate struggle at the time of death. In addition to that, both the lungs were congested. These findings are indicative of asphyxia by strangulation which is mostly homicidal in nature as pointed out by Dr. Modi mentioned hereinabove.
16. The criteria for distinguishing suicidal strangulation from homicide are discussed in Taylor's "Principles and Practice of Medical Jurisprudence", Volume-I ,page 394 as follows:
"In all cases of suicidal strangulation, the means by which asphyxiation was produced must be found upon the neck. The course and direction of the tie, the way in which it was secured or fixed in order to produce effective pressure on the windpipe, the amount of injury to the muscles and parts beneath, are circumstances from which, if observed at the time, a correct medical opinion may generally be formed.
If the means of constriction are removed, or the cord or ligature lies loose, these facts, unless explained, are initially presumptive of homicide. If the ecchymosis or mark in the neck does not accurately correspond, or if the means of constriction were not evident when the body was first discovered, there are grounds for presuming that the act was homicidal."
In the instant case, the means of constriction for asphyxial death was removed. The Autopsy Surgeons have specifically mentioned that it is not possible for them to tell whether asphyxia was caused by hit on the backside of the neck with "Nora" (made of stone and used for grinding spices manually), which was seized from the bathroom along with the steel bucket by P.W.29. The absence of the means of constriction which could have accurately explain the means by which asphyxiation was produced is sufficient ground for presuming that the act was homicidal as pointed out by Dr. Taylor hereinabove.
17. We would like to point out other circumstances which will unerringly give credence to the opinion of Autopsy Surgeons about the cause of death by asphyxia which is ante-mortem and homicidal in nature. The defence case disclosed by the Defence witnesses and by the accused persons under Section 313 of the Code of Criminal Procedure is that on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. when Soma, Sukhendu and DW2 came back from temple, Soma went to the upstairs to get refreshed and the accused Sukhendu and DW 2 waited in the downstairs for arrival of Soma for attending the dinner. After waiting for a while when Soma did not come down, the accused Sukhendu went to the upstairs and found the bath room locked from inside and heard the noise of falling water and Soma did not respond to his call and thereafter the accused Sukhendu along with D.W.2, Rabi Shankar Chandra alias Babu and P.W.22, Netai Chandra Jana went to the upstairs and broke open the door of the bath room by force and shifted Soma from the bath room to verandah. What will be the conduct of a normal human being under such circumstances? The inmates of the house will immediately call the doctor for necessary treatment of the victim or will shift the victim immediately to the nearby hospital or nursing home. In the instant case, the accused Sukhendu Sur asked P.W.22, Netai Chandra Jana to call his parents and sister from the house of Purnendu Chandra without taking any step either to call a doctor or to shift Soma to the nearby hospital or nursing home. Even D.W.2, Rabi Shankar Chandra alias Babu who happens to be the close relative of the accused Sukhendu, and to whose house the accused Sukhendu and Soma were supposed to go to attend the invitation for dinner, did not take any step to call a doctor or to shift Soma to the hospital or nursing home. It is also quite unnatural that the persons who were playing cards with P.W.22, Netai Chandra Jana, namely Achinta Maity, Mahendra, Tara, did not accompany P.W.22 and D.W.2 to the upstairs when Soma was not responding to the call of accused Sukhendu Sur inside the closed bath room. No explanation is forthcoming as to why Achintya Maity, Mahendra, Tara were not examined by the defence to prove the incident of accidental death of Soma. D.W.3, Purnendu Sur who happens to be the brother of the accused Sukhendu Sur and who used to reside at Haldia as a student of engineering college at Haldia, has stated that he arrived at the place of occurrence at about 8.00 to 8.20 p.m. and found the dead body of Soma lying in the verandah and then he went to fetch a doctor, but no doctor was available in a sub-divisional town of Contai where the sub- divisional hospital is situated at a distance of about 4 kilometres from the quarters of the accused persons and the chamber of the doctors is available in Super Market situated near the quarters of the accused persons as narrated by D.W.1 in page 5 of his cross-examination. With the above background of the defence case it is necessary to scrutinise the evidence of P.W.22, Netai Chandra Jana to decide whether he is a reliable witness. P.W.22, Netai Chandra Jana is a sweeper who happens to be the casual employee of Contai Co-operative Bank. It is very difficult to reconcile the statement made by P.W.22 during his examination in chief and during his cross-examination by the defence. Moreover, P.W.22 was declared hostile and permitted to be cross-examined by the prosecution under Section 154 of the Indian Evidence Act as he denied his earlier statement given before the investigating officer when he was examined under Section 161 of the Code of Criminal Procedure. P.W.22 has stated categorically in his evidence in chief that Soma died at about 9:30 p.m. to 10:00 p.m. which he learnt from members of the family of Sur i.e. the accused persons. If P.W.22 heard from the members of family of the accused persons that Soma died at about 9:30 p.m. to 10:00 p.m. on 20.08.2003, it is well-nigh impossible for us to believe that he accompanied the accused Sukhendu Sur and D.W.2, Rabi Shankar Chandra alias Babu to the quarters of the accused persons and shifted Soma from bath room after breaking open the door of the bath room at about 7:30 p.m. to 8:00 p.m. or immediately thereafter as narrated by him during cross-examination by the defence. It is also beyond the orbit of reasonable probability that the information about the invitation for dinner in the house of Purnendu Chandra, the uncle of D.W.2, will be communicated to the accused Sukhendu at about 7:30 p.m. to 8:00 p.m. through the sweeper of the Bank i.e. P.W.22, without communicating the same through D.W.2.
Accordingly, we are unable to give credence to the testimony of P.W.22 Netai Chandra Jana with regard to what he stated about the incident of death of Soma on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. It is held by the Apex Court in the case of "State of U.P. V. Ramesh Prasad Mishra" reported in 1996 (3) Crimes 181 (SC) and "Koli Lakhmanbhai Chanabhai V. State of Gujarat"
reported in 2000 SCC (Cri) 13 that the evidence of a hostile witness should not be totally rejected if spoken in favour of the prosecution or the accused, but it must be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The evidence of P.W.22, Netai Chandra Jana that he leant from the members of family of the accused persons that Soma died at about 9:30 p.m. to 10:00 p.m. is consistent with the prosecution case, so far as the time of death of Soma is concerned and as such we are inclined to accept only this aspect of evidence of P.W.22.
18. We have already observed on the basis of the medical evidence that the time of death of Soma Sur must not be earlier than 10 O'clock in the night on 20.08.2003. The fact of communication of information about death of Soma Sur by suicide to P.W.3, P.W.4, P.W.7 and P.W.20 by the accused Hridayangshu Sur and the accused Chabi Rani Sur respectively is at 10:45 p.m. on 20.08.2003. P.W.22, the witness who was declared hostile, has stated during examination in chief that he learnt from the members of family of accused persons that Soma Sur committed suicide at about 9:30 p.m. to 10:00 p.m. The evidence adduced by the prosecution as discussed hereinabove is matching with the opinion of the Autopsy Surgeon with regard to the time of death of Soma which cannot be earlier than 10:00 p.m. on 20.08.2003. On this count also the defence case of accidental death of Soma in the bath room of the quarters at about 7:30 p.m. to 8:00 p.m. on 20.08.2003 will be ruled out. We have already pointed out hereinabove that no effort was made by the accused persons to call the doctor immediately after the incident or to shift Soma Sur to the hospital or nursing home immediately after the incident. No explanation is forthcoming why the deceased Soma was wearing a nighty and a panty immediately after her arrival from the temple, when she had gone to the upstairs to get refreshed immediately for attending dinner in the house of their relative and when her husband and another relative were waiting for her in the downstairs of the house. No explanation is also forthcoming why the body of Soma Sur was kept on the verandah without keeping on the bed, had she been loved by her husband, the accused Sukhendu Sur. Accordingly, the medical evidence of the Autopsy Surgeon, the inquest report prepared by the Executive Magistrate, coupled with the evidence that the latch fixed inside the door of the bath room was intact, the removal of means of constriction for asphyxial death, the conduct of the accused persons by not calling any doctor or by not shifting the body to the hospital immediately after the incident, the timing of death of Soma not before 10 O'clock in the night of 20.08.2003 and making out highly unnatural, improbable and absurd defence with the help of P.W.22 whose evidence is not trustworthy, and spreading of false news of suicide of Soma by the accused persons on 20.08.2003 at 10:45 p.m., go to establish that Soma died homicidal death. We can safely hold that the opinion given by the Autopsy Surgeons, P.W.10 and P.W.11 is reliable and trustworthy. The logical inference is that the cause of death of Soma is asphyxia which is ante-mortem and homicidal in nature as narrated by the Autopsy Surgeons, P.W.10 & P.W.11.
19. The next question for consideration in this appeal is whether the accused persons killed Soma with common intention to cause her death. The prosecution has relied on circumstantial evidence to prove the accused persons guilty of committing murder of Soma with common intention. The Supreme Court of India has laid down the following tests to prove the guilt of the accused persons by way of circumstantial evidence in the case of "Shard Birdhichand V. State", reported in AIR 1984 SC 1622 and "Sattatiya alias Satish Rajanna Kartalla V. State of Maharashtra" reported in (2008) 1 SCC (Cri) 733: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with guilt of the accused, but should be inconsistent with his innocence. We would also like to rely on the decision of "Jaharlal Das V. State of Orissa"
reported in (1991) 3 SCC 27 cited on behalf of the appellants, wherein it is observed in Paragraph 9 that the court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof and the court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Let us now scan the evidence on record to find out whether circumstances relied on by the Learned Trial Court will satisfy the tests laid down by the Apex Court for holding the accused persons guilty of the charge of murder of Soma with common intention.
20. P.W.1, Aswini Kumar Maity is the father of the deceased Soma.
It transpires from evidence of P.W.1 that Soma eloped with the accused Sukhendu on 02.02.2002 after her fourth semester examination of four year degree course in Information Technology at Salt Lake. P.W.1 has stated that the marriage of Soma and the accused Sukhendu took place on 06.02.2002 in the house of her maternal grand-father at Athilagari, Contai against the will of the parents of Soma and as such they did not attend the marriage ceremony. It is also elicited from the evidence of P.W.1 that the accused persons had borne the cost of continuing study of Soma staying in the hostel after her marriage. P.W.1 has stated that he came to learn about the demand of money made by the accused persons from his brother, Dr. Anil Kumar Maity (P.W.12) who heard the same from Soma. This witness has stated in the written complaint treated as FIR (Exhibit-15) that Soma used to reside in the matrimonial home at Contai for about 8 to10 days in a month and that after four to five months of marriage the accused Sukhendu asked Soma to bring Rs.2,00,000/- from her father for setting up new business and that the accused persons used to torture her and beat her for her refusal to communicate to her father for the money wanted by the accused Sukhendu. It is also elicited from the evidence of this witness that the accused persons demanded Rs.50,000/- which they spent for the education of Soma. It appears from the evidence of P.W.1, P.W.12, P.W.14 and P.W.19 that Soma used to spend her days in misery for insultation and she communicated these facts to her uncle, Dr. Anil Kumar Maity, P.W.12 when she met her personally and also over phone and to her mother, P.W.19, Anjana Maity when Soma visited to the house of her parents at Haltu in Kolkata and also to her maternal grand-father, P.W.14, Bhaskar Jana when Soma visited to the house of her maternal grand-father.
21. P.W.12, Dr.Anil Kumar Maity is the cousin of P.W.1 and they live in the joint mess in their residence at Haltu in Kolkata. P.W.12 has stated in evidence that Soma narrated to her personally and also over phone on some occasions after marriage that she was tortured by the accused persons as she did not agree to communicate to her father about the demand of Rs.2,00,000/- made by the accused Sukhendu for starting his business. This witness came to learn from Soma that the accused persons pressurized Soma to bring money spent by them for prosecuting her study in Kolkata. P.W.12 also came to learn from Soma that the accused persons held out threat of divorce and did not provide food in order to coerce her to bring money from her father. It is elicited from the evidence of P.W.12 that on 2/3 occasions he went to matrimonial home of Soma at Contai for rapprochment and amicable settlement of the dispute and the torture was kept in abeyance temporarily, but the torture continued thereafter.
22. P.W.19, Anjana Maity, mother of Soma has stated in evidence that Soma used to live with her husband and other members of the family in the matrimonial home at Contai during holidays of the college in Kolkata. It transpires from the evidence of P.W.19 that Soma was physically assaulted by the accused persons when she protested for demand of Rs.2,00,000/- by the accused Sukhendu for starting his new business. P.W.19 has also stated that threat of divorce was held out to Soma in order to coerce her for bringing money from her father. This witness has also stated that Soma communicated the incidents of torture and demand of money by the accused persons to her when Soma visited to their residence at Haltu in Kolkata, where she visited for the last time in July, 2003.
23. P.W.14, Bhaskar Jana, maternal grand-father of Soma has stated that Soma used to visit their house when she used to go to the matrimonial house in the midst of her study at Salt Lake, Kolkata. P.W.14 has stated that after 5 to 6 months of marriage Soma came to their house and narrated that the accused Sukhendu demanded Rs.2,00,000/- for starting a new business and when she protested she was tortured by the accused persons. It also transpires from the evidence of this witness that Soma was threatened to be divorced and slapped for her refusal to bring money from her father.
24. P.W.18, Manas Kumar Jana, maternal uncle of Soma also narrated that he heard from Soma in their residence at Athilagari, Contai that Soma was tortured by the accused persons in order to coerce her to bring Rs.2,00,000/- from her father for starting a new business of the accused Sukhendu. P.W.18 has specifically stated that Soma visited their residence for the last time on 15.08.2003 i.e. about 5 days before the incident of her death.
25. It is also consistent evidence of P.W.13 Bibha Maity, paternal aunt of Soma, P.W.15, Pranab Kumar Barik, cousin of Soma that they heard from Soma about the torture inflicted on her to coerce her to bring money from her father by the accused persons. P.W.16 Sudhangshu Maity, uncle of Soma has also stated that he heard from Soma how she was tortured by the accused persons in order to coerce her to bring Rs.2,00,000/- from her father for starting new business of the accused Sukhendu. P.W.16 has also stated that she was threatened to be divorced if she would fail to bring Rs.2,00,000/- from her father. This witness has stated in page 4 of his cross- examination that it is false that Soma Sur narrated the incidents of torture meted out upon her by the accused persons on account of demand of Rs.2,00,000/- made by the accused Sukhendu Sur for setting up business, otherwise she would be divorced and the accused Sukhendu would marry again. Taking advantage of this stray sentence during lengthy and irrelevant cross-examination of the witness by defence, Mr. Maitra, Learned Counsel for the appellants submits that this aspect of evidence of P.W.16 is binding on the prosecution as this witness is not declared hostile and permitted to be cross-examined by the prosecution. In support of his contention, Mr. Maitra has relied on the case of "Raja Ram V. State of Rajasthan" reported in (2005) 5 SCC 272 (Paragraph 9), wherein it is laid down that P.W.8 saw P.W.5 tutoring the deceased for putting the blame on the husband and his parents, but P.W.8 was not declared hostile and as such the evidence of that prosecution witness is binding on the prosecution and thereby dying declaration was held as not trustworthy. The tenor of testimony of P.W.16 clearly indicates that his evidence with regard to the torture inflicted on Soma by the accused persons in order to coerce her to bring Rs.2,00,000/- from her father for setting up new business of the accused Sukhendu is consistent with the evidence of P.W.1, P.W.12, P.W.14, P.W.18 and P.W.19. The statement of P.W.16 in page 4 of the cross-examination pointed out by Learned Counsel for the appellants is made by the witness while denying the suggestion put to him on behalf of the accused persons. The evidence of any witness is to be construed on the basis of what the witness has stated during examination in chief and during cross-examination and one stray statement cannot be picked up for impeaching the credibility of the witness or for doubting the prosecution story, when the said stray statement is made during denying the suggestions made on behalf of the defence. The facts of the instant case are clearly distinguishable from the facts of the case cited on behalf of the appellants and as such the ratio of the said case will not be applicable in evaluating the evidence of P.W.16 whose tenor of testimony is consistent with the evidence of other prosecution witnesses.
26. The deceased Soma had written one letter to her husband the accused Sukhendu on 03.07.2008 (Exhibit-2) while she was staying in the hostel at Kolkata. The contents of this letter (Exhibit-2) indicate that Soma was depressed as her husband the accused Sukhendu was trying to avoid in keeping relation with her, though she had deep love and affection for her husband. This letter also indicates that Soma used to visit the house of her parents. The contents of the letter go to establish that the accused Sukhendu was trying to withdraw himself from the association of his wife, Soma by his conduct and thereby Soma was very upset.
27. On evaluation of the above evidence adduced by the prosecution it appears that the deceased Soma used to live in the hostel at Kolkata after the marriage, but she used to visit her matrimonial home at Contai very often and she also used to visit the house of her parents at Haltu, Kolkata. It is the consistent evidence of P.W.1, P.W.12, P.W.14, P.W.15, P.W.16, P.W.18, P.W.19 that after 5 to 6 months of marriage Soma was subjected to cruelty and harassment by the accused persons when she protested the proposal of the accused persons to approach her father for Rs.2,00,000/- to set up new business of the accused Sukhendu. It is also consistent evidence of the above witnesses that the accused Sukhendu held out threat of divorce in order to coerce Soma to bring money from her father for the purpose of setting up his new business. It appears from the evidence of the prosecution witnesses and from the letter written by Soma to her husband (Exhibit-2) that Soma was spending her days in misery as the accused Sukhendu was trying to withdraw himself from the association of his wife, Soma by his conduct. With the above background of evidence this court will deal with each and every question raised on behalf of the appellants.
28. Relying on the decision of "Appasaheb and Another V. State of Maharashtra" reported in AIR 2007 SC 763 and "Modinsab Kasimsab Kanchagar V. State of Karnataka and Another"
reported in AIR 2013 SC 1504, Mr. Maitra Learned Counsel for the appellants submits that demand of money for setting up new business does not amount to dowry. Again, by referring to the decision of the Apex Court in the case of "Durga Prasad and Another V. State of Madhya Pradesh" reported in (2010) 9 SCC 73, Mr. Maitra also submits that the bald statements of the parents and relatives of the deceased that the deceased Soma was subjected to cruelty and harassment for demand of money without disclosing the date, month and year of the incidents, is not sufficient to draw the presumption for dowry death under Section 304B of the Indian Penal Code. In the instant case the accused persons were not found guilty of the charge under Section 304B of the Indian Penal Code by the Learned Trial Court and as such the issue whether demand of Rs.2,00,000/- by the accused persons for setting up new business of the accused Sukhendu amounts to dowry, need not to be decided by us in this appeal. Similarly, this court need not decide whether the evidence adduced by the prosecution witnesses in respect of the cruelty and harassment of the deceased Soma will be sufficient to draw the presumption of dowry death under Section 304B of the Indian Penal Code. In our view, the above three decisions cited on behalf of the appellants are not relevant for deciding the issue whether the accused persons killed Soma with common intention to cause her death.
29. We have already observed that this is a case based on circumstantial evidence. Mr. Maitra submits that the prosecution has failed to establish the motive of the accused persons in committing the murder of Soma. In this regard Mr. Maitra has relied on the decisions of the Supreme Court in the case of "Pannayar V. State of Tamil Nadu" reported in (2009) 9 SCC 152 and the case of "Badam Singh V. State of Madhya Pradesh" reported in AIR 2004 SC 26. On the other hand, relying on the decision of the Supreme Court in the case of "State of Gujarat V. Anirudh Singh and Another" reported in 1997 Cri. L.J. 3397 and the case of "Ganesh Lal V. State of Maharashtra" reported in 1993 SCC (Cri) 435, Mr. Manjit Singh, Learned Public Prosecutor submits that absence of proof of motive cannot be a ground for rejection of the prosecution case. In the case at hand it is established from the evidence of prosecution witnesses that after 4 to 5 months of marriage there was constant pressure on Soma to approach her father to bring Rs.2,00,000/- for setting up the business of her husband, the accused Sukhendu. It is also established from the evidence that the deceased Soma was subjected to torture and harassment by the accused persons, as she refused to approach her father for bringing money for setting up business of her husband. We must realise the helplessness and mental condition of a newly married young housewife who eloped from the house of her parents and married her husband against the will of her parents, when the husband was trying to keep himself detached from the wife and holding out threat of divorce and the ill- treatment is meted out by the accused persons in order to coerce her to bring money from her father. The accused Sukhendu tried to get rid of the relationship with the deceased Soma and that may be the motive for commission of murder of Soma. It is relevant to consider the submission of Mr. Maitra who has referred to page 31 & 32 of cross-examination of P.W.29, the second Investigating Officer in order to impress upon us that the accused Sukhendu had love and affection for the deceased Soma. The above cross-examination of P.W.29 reveals that the Investigating Officer did not make any enquiry whether the accused Sukhendu opened various Bank Accounts and took LIC Policy by making his wife Soma as nominee and whether the accused deposited Rs.1,99,000/- in the Bank by making Soma as nominee. This does not go to establish that the accused Sukhendu made his wife Soma nominee in all Bank deposits and Bank Accounts and LIC Policy, unless and until the accused persons adduce evidence before the Court to prove that Soma was really made nominee in the Bank deposits and Bank Accounts and LIC Policy. In the absence of leading any evidence in this regard by the defence, we don't find any merit in the submission of Mr. Maitra.
30. It is decided by the Supreme Court of India in "Pannyar V. State of Tamil Nadu" reported in (2009) 9 SCC 152 (Paragraph 28) that the absence of motive in a case depended on circumstantial evidence is more favourable to the defence. In this reported case no motive was established as to why the accused whom the deceased knew would venture to rob her. Similarly, the Supreme Court of India has observed in the case of "Badam Singh V. State of Madhya Pradesh" reported in AIR 2004 SC 26 (Paragraph 20) that even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. The instant appeal is not a case based on ocular evidence, whereas the case reported in AIR 2004 SC 26 lays down the principle of importance of motive when the ocular evidence is suspect. Accordingly, the ratio of this reported decision is not applicable in the facts of the present case. We have already observed that there is motive on the part of accused Sukhendu in eliminating the deceased Soma. Accordingly the decision reported in (2009) 9 SCC 152 cited on behalf of the appellants is not going to help the appellants in any manner .However, the Apex Court has laid down in paragraph 45 of the decision reported in 1997 Cri. L.J. 3397 cited by Mr.Singh that if motive is proved that would supply a chain of links, but absence thereof is not a ground to reject the prosecution case. In the instant case, we have observed that the motive of the accused Sukhendu in commission of the crime can be gathered from his conduct reflected in the letter marked Exhibt-2 and also in the evidence of the prosecution witnesses. The proposition of law laid down by the Supreme Court with regard to proof of motive in a case based on circumstantial evidence in paragraph 9 of the decision reported in 1993 SCC (Cri) 435, is as follows:
"It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction." It is, thus, clear from the above proposition of law that even if motive of the accused persons in committing the murder of Soma is not proved by clinching evidence, the same cannot be a ground to doubt the prosecution case. However, we have already observed that there was motive on the part of the accused Sukhendu in eliminating her wife Soma.
31. We have relied on the evidence of P.W.3, P.W.4 and P.W.7 to whom the accused Hridayangshu Sur conveyed the message of suicide of Soma on 20.08.2003 at 10.45 p.m. We have also relied on the evidence of P.W.20 to whom the accused Chabi Rani Sur communicated the fact of commission of suicide by Soma on 20.08.2003 at 10.45 p.m. Mr. Maitra, Learned Counsel has pointed out from the evidence on record that the statement of P.W.3 and P.W.4 was recorded by the Investigating Officer on 26.09.2003 and the statement of P.W.7 was recorded by the Investigating Officer on 02.11.2003 i.e. after lapse of more than one month and more than two months respectively and as such the evidence of these witnesses cannot be relied upon. Mr. Maitra has relied on the decision of the Supreme Court of India in the case of "Vijaybhai Bhanabhai Patel V. Navnitbhai Nathubhai Patel and Ors." reported in 2004 SCC (Cri) 2032 and "Harjinder Singh alias Bhola V. State of Punjab" reported in (2004) 11 SCC 253 to put forward the argument that the evidence of P.W.3, P.W.4 and P.W.7 cannot be relied upon by the court. In the case reported in 2004 SCC (Cri) 2032 there was delay of two days in examining the son of the deceased without proper explanation on the part of the Investigating Officer and as such the said witness was originally disbelieved by the High Court and affirmed by the Apex Court. Similarly, in the case reported in (2004) 11 SCC 253 the Apex Court disbelieved the statement of P.W.6 as her statement was recorded by the Investigating Officer after lapse of three months without any explanation. However, in the case of "Banti V. State of Madhya Pradesh" reported in 2004 SCC (Cri) 294: AIR 2004 SC 261, the argument was advanced on behalf of the defence before the Apex Court that the accused persons were prejudiced as the court below relied on the evidence of the prosecution witnesses who were examined by the Investigating Officer after inordinate delay. It is held by the Apex Court that there is no rule of universal application that the prosecution version will become suspect due to delay in examination of a particular witness by the police during investigation of the case. It is also held by the Apex Court that unless the Investigating Officer is categorically asked as to why there was delay in examination of witnesses during investigation, the defence cannot gain any advantage there from. If the explanation offered for the delayed examination of the witnesses by the investigating agency is plausible and accepted as reasonable, there is no reason to interfere with the conclusion reached by the courts below. The instant appeal relates to a case which was initially investigated by the local police from 22.08.2003 to 16.09.2003, but the investigation was done in perfunctory manner and as such investigation was taken over by the Criminal Investigation Department, West Bengal and P.W.29, Sub-Inspector Ashok Kumar Mondal of CID, West Bengal took up the investigation on 26.09.2003 and continued the same till 17.11.2003. On scrutiny of evidence of P.W.29, it appears from page 33 of cross- examination that P.W.7 was examined on 15.10.2003 and not on 02.11.2003 as contended by Learned Counsel for the appellants. The cross-examination of P.W.29 further reveals that no question was asked from the defence as to why there was delay in examination of P.W.3, P.W.4 and P.W.7 as laid down by the Apex Court. Moreover, P.W.29 took up the investigation being officer of Criminal Investigation Department, West Bengal on 26.09.2003 and on the same day both P.W.3 and P.W.4 were examined. Under such circumstances the delay in examination of P.W.3, P.W.4 and P.W.7 is properly explained and the said explanation is found to be reasonable and as such we are inclined to rely on the evidence of P.W.3, P.W.4 and P.W.7 on the basis of the proposition of law laid down by the Apex Court in the decision reported in 2004 SCC (Cri) 294. As the explanation is forthcoming for the delay in examination of P.W.3, P.W.4 and P.W.7, the ratio of the decisions reported in 2004 SCC (Cri) 2032 and (2004) 11 SCC 253 cited on behalf of the appellants will not be applicable in the facts of the present case.
32. We have observed that the specific defence alibi is that on 20.08.2003 the accused Sukhendu accompanied by D.W.2 and the deceased Soma went to the temple for worship and came back to the quarters of the Bank at about 7:30 p.m. to 8:00 p.m. D.W.1, Ardhendu Chandra happens to be the son of maternal uncle of the wife of the accused Hridayangshu Sur. He narrated the entire defence story, but he heard about the defence story from P.W.22, Netai Chandra Jana whose evidence is not trustworthy as already pointed out by us and as such the evidence of D.W.1 must go down as hearsay evidence. D.W.2, Rabi Shankar Chandra alias Babu has stated that on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. he came back from the temple along with accused Sukhendu and the deceased Soma to the quarters of the accused persons. This witness has stated that Soma went to the upstairs to get refreshed for attending the dinner in their house and he was waiting in the downstairs along with the accused Sukhendu. This witness has further stated that after waiting for a while when Soma did not come down, the accused Sukhendu went to the upstairs and found the bath room locked from inside and heard the noise of falling water and Soma did not respond to the call of Sukhendu. This witness has also stated that he went to the upstairs along with the accused Sukhendu and P.W.22, Netai Chandra Jana and broke open the door of the bath room and shifted Soma from bath room to the verandah of the quarters. D.W.3, Purnendu Sur who happens to be the brother of the accused Sukhendu by full blood, has stated that he arrived at the place of occurrence on 20.08.2003 at about 8:00 p.m. to 8:20 p.m. and found the dead body of Soma lying on the verandah and then he went to the call doctor, but no doctor was available. We have already discussed in paragraph 17 that the evidence adduced by the defence witnesses namely D.W.1, D.W.2, and D.W.3 is not reliable and trustworthy. The presence of P.W.22, Netai Chandra Jana in the premises of the Bank on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. must be ruled out on the basis of his evidence in chief where he has stated that he heard from the members of family of the accused persons that Soma died at about 9:30 p.m. to 10:00 p.m. and the said statement of P.W.22 remains unchallenged. The evidence of the D.W.2 and the statement of the accused Sukhendu under Section 313 of Code of Criminal Procedure that they, found Soma inside the bath room and brought her to the verandah is nullified from the evidence of P.W.29 coupled with the photograph (Exhibit II/4) which goes to establish that the latch inside the door of the bath room was intact. It also passes our comprehension to believe that D.W.3, the brother of the accused Sukhendu arrived at the place of occurrence from Haldia at about 8:00 p.m. to 8:20 p.m. on 20.08.2003 and went out to call a doctor after finding the dead body of Soma lying on the verandah. The evidence of calling a doctor by D.W.3 is introduced on behalf of the defence when D.W.1 disclosed during cross-examination in page 5 that there were chambers of doctors situated near the quarters of the Bank, where the accused persons used to reside. Had there been an accidental fall of the deceased Soma in the bath room at about 7:30 p.m. to 8:00 p.m. on 20.08.2003, the accused persons would have taken steps to take Soma to any doctor or hospital or nursing home in a Sub-divisional town like Contai. The evidence adduced on behalf of the defence is also nullified from the fact that the death of Soma could not have taken place earlier than 10 O'clock in the night of 20.08.2003 as already discussed by us. With the above background of evidence adduced on behalf of the defence, Mr. Singh, Learned Public Prosecutor submits that falsity of defence alibi is an additional link in the chain of circumstantial evidence. Mr. Singh has relied on the decision of "Narendra V. State of Karnataka"
reported in 2009 AIR SCW 3378 in support of his contention. Mr. Singh has also relied on the decision in the case of "Trimukh Maroti Kirkan V. State of Maharashtra" reported in (2006) 10 SCC 681 in support of his contention that non-explanation of how homicidal death of Soma was caused inside the house of the accused persons is a strong circumstance, which indicates that the accused persons committed the crime. On perusal of the decision reported in 2009 AIR SCW 3378 we find in paragraph 5 that the Supreme Court has considered falsity of plea of alibi as an additional link in the circumstantial evidence in the said case. The principle of law enunciated in paragraph 15 of the decision reported in (2006) 10 SCC 681 is that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The Supreme Court has also observed as follows in paragraph 22 of the said decision: "where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
33. Mr. Maitra, Learned Counsel for the appellants has relied on the decisions reported in (2004) 11 SCC 282, (1997) 1 SCC 283, 1974 SCC (Cri) 67, (2012) 1 SCC 10 and (2001) 4 SCC 375 in support of his contention that false alibi taken by the defence cannot lessen the burden of the prosecution to prove the case beyond reasonable shadow of doubt. Mr. Maitra further submits that Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its duty to prove the case, but it is designed to meet certain exceptional cases where it will be impossible for the prosecution to establish some facts which are within the special knowledge of the accused persons. It is necessary to discuss the cases cited on behalf of the appellants. In the case of "Binoy Kumar Singh V. State of Bihar" reported in (1997) 1 SCC 283 the Supreme Court has held in paragraph 23 that the burden of the prosecution would not be lessened by the mere fact that the accused has adopted the defence of alibi. However, once the burden is discharged by the prosecution satisfactorily, strict proof is required for establishing the plea of alibi by the defence. It is held by the Supreme Court in the case of "Dasari Siva Prasad Reddy V. Public Prosecutor, High Court of A.P." reported in (2004) 11 SCC 282 that failure on the part of the accused to establish that he remained in the house of his parents in another village does not necessarily lead to the inference that he must have remained in the place of occurrence on the night in question. The Apex Court has laid down in the case of "Tika and Ors. V. State of Uttar Pradesh" reported in 1974 SCC (Cri) 67 that in a case to be proved on direct testimony, falsity of defence will not help the prosecution to establish its own case. The case in hand is not a case based on direct testimony and as such ratio of this decision is not application in the facts of the present case. The Supreme Court has held in the case of "Sucha Singh V. State of Punjab"
reported in (2001) 4 SCC 375 in paragraph 19 and reiterated in the case of "Prithipal Singh and Others V. State of Punjab and Another" reported in (2012) 1 SCC 10 in paragraph 53 that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. The proposition of law laid down by the Apex Court in the decisions cited on behalf of the appellants is that the prosecution is duty bound to prove the case and once this burden is discharged by the prosecution satisfactorily, the defence must establish the plea of alibi and in some exceptional cases where it will be impossible for the prosecution to establish certain facts within the special knowledge of accused persons the same must be discharged by the accused persons under Section 106 of the Indian Evidence Act.
34. It has been established from the evidence on record that Soma died homicidal death in her matrimonial home in the quarters of Contai Co-operative Bank on 20.08.2003 in the night not earlier than 10 O'clock. The defence story that the accused persons except the accused Sukhendu were not in the quarters as they had gone to attend dinner in the house of their relative is found to be false. The defence case that Soma was found dead inside the bath room at about 7:30 p.m. to 8:00 p.m. on 20.08.2003 is also found to be false. It is also established from the evidence on record that the accused persons were absent from the house leaving the dead body alone there when police went to the house accompanied by the Executive Magistrate for conducting inquest. The motive on the part of the accused Sukhendu in eliminating his wife Soma has also been established from the evidence on record. Accordingly, the prosecution has been able to prove beyond doubt that the accused persons killed Soma with intention to cause her death. Naturally, the burden is shifted on the accused persons under Section 106 of the Indian Evidence Act to establish how Soma died homicidal death inside the quarters and the accused persons have failed to discharge this burden by adducing cogent evidence. Non-explanation of cause of homicidal death of Soma inside the quarters of the accused persons coupled with false defence taken by the accused persons will be an additional link in the chain of circumstances on the basis of the principle of law enunciated by the Apex Court in the decisions reported in (2006) 10 SCC 681 and (2009) AIR SCW 3378 cited on behalf of the respondent/State.
35. The circumstances established beyond doubt from the evidence on record may be summarised as follows: (i) the deceased Soma died homicidal death in the quarters of the accused persons on 20.08.2003 in the night not earlier than 10 O'clock, (ii) the accused Hridayangshu Sur and the accused Chabi Rani Sur had given false information to P.W.3 and P.W.20 respectively on 20.08.2003 at 10:45 p.m. that Soma committed suicide, (iii) there were injury marks on the dead body of Soma indicating struggle before death, (iv) the accused persons did not take any step to call a doctor or to shift Soma to the hospital or nursing home in the night of 20.08.2003,(v) the deceased Soma was subjected to cruelty and harassment by the accused persons after 5 to 6 months of her marriage in order to coerce her to bring Rs.2,00,000/- from her father for setting up the business of the accused Sukhendu, (vi) the accused Sukhendu was very much annoyed and dissatisfied with his wife Soma and was holding threat to Soma to divorce her and to get married for the second time and wanted to sever his relationship with Soma as husband and wife, and as such there was motive on the part of the accused Sukhendu to eliminate his wife, (vii) the accused persons had taken false defence alibi that on 20.08.2003 at about 7:30 p.m. to 8:00 p.m. Soma died an accidental death by falling inside the bath room of the quarters when the accused Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur went to the house of their relative for attending dinner and the accused sukhendu was waiting in the downstairs of the house for attending the same dinner with the deceased Soma, (viii) the accused persons having special knowledge as to how Soma died homicidal death inside their quarters have failed to explain to the satisfaction of the court and thereby the accused persons have failed to discharge their burden under Section 106 of the Indian Evidence Act.
36. The above circumstances established from the evidence on record unerringly point out beyond reasonable shadow of doubt that the accused persons must have committed homicidal death of Soma and that the deceased Soma was subjected to cruelty and harassment by the accused persons being the husband and relatives of the husband and that they also caused disappearance of evidence by shifting the dead body from the original place of occurrence and by removing means of constriction used for asphyxial death of Soma. The above circumstantial evidence has fulfilled the tests laid down by the Apex Court in the decisions reported in AIR 1984 SC 1622 and (2008) 1 SCC (Cri) 733. We, therefore, agree with the findings of Learned Judge of the court below that all appellants are guilty of the charge under Sections 498A/34 and under Sections 201/34 of Indian Penal Code.
37. Relying on the decision in the case of "Laxman Anaji Dhundale and Another V. State of Maharashtra" reported in (2007) 2 crimes 225 (SC), Mr. Maitra submits that there is no credible evidence of any common intention of the appellants Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur along with the appellant Sukhendu Sur to cause the death of the deceased Soma and as such all appellants cannot be held guilty of the charge under Sections 302/34 of the Indian Penal Code. The Supreme Court has decided in the case reported in 2007 (2) crimes 225 (SC) that in the absence of any credible evidence, direct or circumstantial that there was any plan or meeting of minds of all the accused persons to commit the offence in question, the charge under Section 34 of the Indian Penal Code cannot be established. To invoke the provisions of Section 34 of the Indian Penal Code, it must be established from evidence on record that there was a pre-arranged plan between the accused persons and the accused persons sought to be held liable had participated in some manner in the act constituting the offence. The evidence on record does not indicate that there was pre- arranged plan on the part of the accused Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur along with the accused Sukhendu Sur to cause death of Soma or that all these accused persons participated in the commission of murder of Soma, though there is evidence to indicate that Soma was subjected to cruelty and harassment by all the accused persons and they are also responsible for causing disappearance of evidence from the scene of crime. In view of the proposition of law laid down by the Apex Court in the decision cited by Learned Counsel for the appellants, the accused Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur are entitled to get benefit of doubt with regard to the offence of murder and as such they are acquitted of the charge under Sections 302/34 of the Indian Penal Code. The upshot of our entire above observation is that we agree with the findings of the Learned Trial Judge to the effect that the appellant Sukhendu Sur is guilty of the charge under Section 302 of the Indian Penal Code.
38. In view of our above findings, the appeal is allowed in part. The order of conviction and sentence in respect of the appellant Sukhendu Sur passed by Learned Trial Court is hereby affirmed. The conviction and sentence of the appellants Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur for the offence under Sections 498A/34 and under Sections 201/34 of the Indian Penal Code is also affirmed. However, the appellant Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur are acquitted of the charge under Sections 302/34 of the Indian Penal Code. The appellants Hridayangshu Sur, Chabi Rani Sur and Sanchita Sur have already undergone the maximum period of sentence imposed by the Learned Judge of the court below in connection with the offence under Sections 498A/34 and under Sections 201/34 of the Indian Penal Code and as such they are set at liberty, if not wanted in any other case.
Let a copy of this judgement and order be sent down to the Learned Court below along with Lower Court Records for favour of information and necessary action.
Urgent Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities.
(R. K. Bag, J.) I agree.
(Tapen Sen, J.)