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1991 DIGILAW 173 (CAL)

Sukur Ali v. STATE OF WEST BENGAL

1991-03-28

M.G.Mukherji

body1991
JUDGMENT Mukul Gopal Mukherjee, J 1. THE appeal is directed against an order of conviction under Section 302 Indian Penal Code and sentence of imprisonment for life passed by the learned Additional Sessions Judge 2nd Court, Alipore, 24-Parganas on 24.8.1985 in sessions Trial No. 5(3)85. The prosecution case inter alia is to the effect that the appellant killed his wife by way of strangulation, pressing her neck with a shovel which he did, according to the extra judicial confession made by the accused because of an a Tand made by his father. The prosecution case is to the effect that, as and when the accused was married to Saburjan, the younger sister of P.W. 1, Jalal Mondal, there was a promise to pay Rs. 600/- in cash, a wristwatch and a bi-cycle to the bridegroom but the promised dowry was not paid which prompted the groom's father ultimately to two allow her to reside in her husband's house till the articles along with cash were handed over to them. Rupjan, the mother of Sukur Ali however, came to the house of P.W. 1 and took the daughter-in-law to their house but ultimately a few days thereafter on the 29th of Shravan 1390 B.S. corresponding to 9th of August, 1983 at about 11.30 p.m., P.W. I, Jatal Mondal on getting some information having visited the house of his brother-in-law, the appellant, found his sister lying dead on the verandah of the house while his brother-in-law the present appellant was shouting allegedly on the pressure of some pains in his stomach. P.W. 1 sent his brother, Madar, to a village quack Dr. Abdus Sattar (P.W. 2) and the said doctor on arrival and. on examination confirmed that Saburjan was dead. He asked Sukur Ali, the appellant as to how his wife died to which Sukur Ali told him that she died by hanging. The doctor asked him as to how he had brought her down and then the accused said that he killed his wife by pressing her on the neck. When he was asked as to how he has pressed her, he replied that he pressed her with a shovel of iron. On being asked as to the reason why he had killed his wife, he told that his father instructed him to kill her as the bride was not good and dues have not been satisfied. When he was asked as to how he has pressed her, he replied that he pressed her with a shovel of iron. On being asked as to the reason why he had killed his wife, he told that his father instructed him to kill her as the bride was not good and dues have not been satisfied. He even stated that his father pressed her down over the bedding of their bed room and he killed his wife by pressing a shovel on her neck and she had not been able to make any noise. His father asked them to lit fire on the cloth and hairs of his wife and to burn her down and his father sprinkled kerosene oil himself on the cloth and hairs and lit the fire. But as cloth and hairs were set fire to, his mother hurriedly came and put off the same by sprinkling water. P.W. 1 and neighbours who assembled over there, entered the room of his sister and actually found on shovel of iron lying by the side of her pillow. The floor of the room was drenched with water. They even found the-edge of her saree and hairs of her head lightly burnt. P.W. 1 along with P.W. 2, Abdus Sattar, Abbas Ali Mondal (P.W. 11), Abdul Khalek (P.W. 4) and Jamal started for the Thana and on the way at Abalsiddhi crossing which was 516 miles away from their village Maricha, they saw a police jeep and told the police officer about the incident. A written complaint was handed over to the officer. P.W. 14, A.S.I. Sailendra Nath Biswas. The police party then came over to the village Maricha and entered inside the house of the appellant where the dead body was found lying on the Verandah. On receipt of the written complaint from A.S.I. Sailendra Nath Biswas (P.W. 14), A.S.I. Shib Das Bhattacharjee (P.W. 17) registered Amdanga P.S. case No.4 date 10.8.1983 at 6.35 hours, P.W. 18, sub Inspector of Police, Ashim Samaddar found many men assembled there at the house of the appellant. He held an inquest over the dead body. He interrogated the inmates of the house including the appellant and his father, seized a shovel and some portion of burnt hair and some pieces of broken choories under a seizure list prepared in presence of P.W. 2, Abdus Sattar, P.W.1, Jalal Mondal. He held an inquest over the dead body. He interrogated the inmates of the house including the appellant and his father, seized a shovel and some portion of burnt hair and some pieces of broken choories under a seizure list prepared in presence of P.W. 2, Abdus Sattar, P.W.1, Jalal Mondal. The burnt hair of the deceased was also seized. The appellant and his father were arrested and the dead body was sent for post mortem examination. The post mortem report having revealed the fracture of the hyoid bone and multiple abrasion marks and the cause of the death in the opinion of the post mortem doctor having been fixed as asphyxia as a result of strangulation, the police ultimately submitted a charge-sheet against the accused appellant and his father, Ombur Ali under section 302/34 Indian Penal Code and also under section 201 Indian Penal Code to which they pleaded not guilty. The defence inter alia was that they were not guilty of the charge and that the incident did not happen in the manner as alleged or at all. There was no extra-judicial confession allegedly made by the appellant Sukur Ali and that the dead body of Saburjan Bibi was discovered from the garden of one Ramjan, contiguous to the appellants house and the members of the family could not say as to how she died. 2. AT the trial eighteen witnesses were examined on behalf of the prosecution and none on behalf of the defence. The learned Trial Judge on shifting of the entire evidence on record came to a finding that the prosecution established beyond all reasonable doubt that the dead body of Saburjan Bibi was found lying in the verandah of the house of her husband and father-in-law and even though the post mortem doctor failed to disclose the hour or the exact time of her death he came to a clear finding that Saburjan Bibi died at the house of her husband and father-in-law at about 11 or 11.30 p.m. on the night of 9th August, 1983 and it was a case of unnatural death. Even though no other witness from the family of the complainant was examined besides P.W. 1, he believed his testimony, where from the motive for the murder stood proved and it being a case of circumstantial evidence where no direct evidence as to the murder was available, the entire surrounding circumstances did lead to the only inference that the appellant was the perpetrator of the crime of murder which finding was duly supported by his extra-judicial confession as testified to by P.Ws. 1, 2, 3 and 4. The nature of the injury as was manifest enough from the extra-judicial confessional statement also stood corroborated by the post mortem doctor, P.W. 12. Even though he found the complicity of the father of the appellant Ombur Ali not having been sufficiently proved beyond reasonable doubt, since it was not safe to convict him merely on the basis of the confessional statement of a coaccused person namely, hi son, and the learned Trial Judge found the evidence as regards offence under section 201 Indian Penal Code not being sufficiently convincing, still the learned Trial Judge had no hesitation to convict the appellant of the substantive charge under section 302 Indian Penal Code for murder so as to sentence him to imprisonment for life as stated above. 3. MISS PamI Banerjee, learned Advocate who was engaged on behalf of the appellant by the State urged before us several points in support of the appeal preferred by the accused appellant from jail. She contended in the first place that P.W. 1, Jalal Mondal was an interested witness who ought not to have believed as regards the motive for the crime namely, non-payment of the dowry, since there was no corroboration whatsoever on this point from any other witness. The further contention of the learned Advocates for the appellant was that there was every possibility for P.Ws. 1,2 and 3, who were all neighbours to falsely implicate the appellant because of the surrounding suspicious circumstances relating to the death of P.W. is sister Saburjan Bibi. The further contention of the learned Advocates for the appellant was that there was every possibility for P.Ws. 1,2 and 3, who were all neighbours to falsely implicate the appellant because of the surrounding suspicious circumstances relating to the death of P.W. is sister Saburjan Bibi. If P.W. 1 obtained the service of his brother Madar to call P.W.2, the quack doctor Abdus Sattar, it was not explained as to why the said Madar as also the six other brothers of P.W. 1 were not examined in this case even though there was evidence on the point that at least some of the brothers were present in the appellants house on that fateful night. MISS Banerjee argued that there was no positive evidence, about the exact time of death and no qualified doctor had at all dsited the house so to examine the victim Saburjan. P.W. 1 found her body stiff and there was every possibility that Saburjan died not at 11 or 11.30 p.m. as alleged by P.Ws.l to 4, but much earlierin point of time and if that be so, the culpability of the present appellant could not be fixed up with any exactitude. MISS Banerjee further contended that P.W. 1 admits that Nur Ali filed against him a false allegation of theft, which went a long way to prove the enmity between the appellant and his family on the one hand and some of the neighbours including Nur Ali on the other. Mrs. Banerjee, however, frankly stated that who this Nur Ali is was never clinched from the evidence and there was nothing on record to prove that Nur Ali belonged to the family of accused or was closely related to him. We have given the contention as raised by the learned Advocate for the appellant our anxious consideration but we do not find any force behind the same, so as to rule out the complicity of the present appellant as transpired from the evidence that is already on record. We cannot arrive at a finding merely on suspicion, when there was no defence suggestion given to the effect that P.Ws. 1,2,3 and 4 had enmity or bias against the present appellant, so as to arrive at a finding that this is a case of foisting a false charge against the appellant and his father Ombur Ali. We cannot arrive at a finding merely on suspicion, when there was no defence suggestion given to the effect that P.Ws. 1,2,3 and 4 had enmity or bias against the present appellant, so as to arrive at a finding that this is a case of foisting a false charge against the appellant and his father Ombur Ali. The very fact that P.W. 1 used the service of his brother Madar to call a quack doctor P.W. 2 has itself been testified to by P.W. 2 himself as also other witnesses. Even though the deceased had as many as eight brothers and the last of them was aged about ten years, it does not follow automatically that all the brothers would be present at the house of the appellant on the fateful hour when the dead body of Saburjan was seen by P.W. 1 and there is no hard and fast rule that all the relations of the deceased have to be examined just because they happened to be the co-villagers of the victim as well as of the appellant. We cannot agree with the submission of MISS Banerjee that just because other brothers of the victim did not came, we should be emboldened to come to a finding that they disagreed to be parties to an alleged conspiracy. 4. WE really find that here was some discrepancy as regards the exact time of handling overthe written complaint to P.Ws. 14 and P.W. 18 while the police jeep was near Abalsiddhi crossing at about 3.30 a.m. P.W. 18, was candid that the time was about 3.30 p.m. and P.W. 14, A.S.I., Sailendra Nath Biswas so corroborated him on this point. It is the evidence that both P.Ws. 14 and 18 had been to village Maricha at the house of the appellant so as to find out the dead body of Saburjan Bibi there and prepared the inquest report where they also seized a shovel and some portion of burnt hair and some pieces of broken choories under a seizure list. It is the evidence that both P.Ws. 14 and 18 had been to village Maricha at the house of the appellant so as to find out the dead body of Saburjan Bibi there and prepared the inquest report where they also seized a shovel and some portion of burnt hair and some pieces of broken choories under a seizure list. P. W. 17, A.S.I. Shib Das Bhattacherjee however, gave out that on the written complaint of A.S.I. Sailendra Nath Biswas he registered Amdanga P.S. Case No.4 date 10.8.1983 at 6.35 a.m. Even though we take into account the fact that P.W s. 1 and 2 gave out the time of the meeting of the police officer wrongly at about 2 a.m. or 2.30 a.m., it transpired from the evidence of P.W. 2 that at about 4 a.m. the police prepared the seizure list and it took about thiny minutes for the police to come to their village by police van from Abalsiddhi crossing. It thus corroborated the version as given out by P.Ws. 14 and 18 that they actually met the police officer at about 3.30 a.m. there not having been any contrary evidence for the coming or even any defence suggestion either that the information of death of Saburjan Bibi reached the police station at any earlier point of time, pursuant to which the police officers visited the Maricha village to find out the dead body. WE, therefore, rule out the submission of Miss Banerjee that the first information report was not lodged in the proper sequence of events and it was a manufactured document. Miss Banerjee, however, drew our attention to the testimony of P.W. 2 who supposed the story of extra judicial confession by the accused and even the time of P.W. 2, Abdus Sattar visiting the house of the appellant and interrogating him about the manner in which he killed his wife when the version as given out by P.W. 8 was to the effect that appellant told P.W. 2 that he killed his wife by strangulation with a piece of cloth. P.W. 9, Taizal who visited the house of the appellant at about 11 p.m. and found the dead body of Saburjan Bibi in the verandah of the house and even found the doctor P.W. 2 visiting the house did not however, hear anything as to how Saburjan died though he was in the house for about ten minutes. P.W. 10, Sahadat Mondal who also visited the house at about 11.30 p.m. on that fateful night and found P.W. 2 Abdus Sattar visiting the house also could not give out anything as to how Saburjan died. P.W. 11 Abdas Ali Mondal who also visited the house of the appellant at about 11.30 or 12.00 in the mid night and found Saburjan lying dead did not testify about his know ledge as to the cause of Saburjans death. Relying on the evidence of these witnesses Miss Banerjee asserted that the version as given out by the prosecution witnesses were at variance to each other regarding the cause of Saburjan s death being elicited from the mouth of the appellant on that very night. Miss Banerjee further argued that there was discrepant version as to the extra-judicial confession itself and the exact words forming the text of the extra-judicial confession were also at variance with each other as deposed to by the different witnesses. We have, however, gone through the testimony of P.Ws. 1, 2, 3 and 4 but we do not find any inconsistency worth the name in between the different version as given out by the different witnesses who testified about the alleged extrajudicial confession. At least the gist of their testimony remain all the same. Sukur Ali told doctor Abdus Sattar (P.W. 2) that he had caused the death of Saburjan by strangulation by pressing a shovel on her neck. Even though the extrajudicial confession was given out in three stages by the appellant, we find the version consistent enough to be believed. What is the law about a confessional statement retracted is also true about the extra-judicial confession which is denied at the trial to have been made by the accused at all. We have to find out whether the confession is voluntary or true. What is the law about a confessional statement retracted is also true about the extra-judicial confession which is denied at the trial to have been made by the accused at all. We have to find out whether the confession is voluntary or true. To base a conviction on retracted extrajudicial confession, there should be corroboration on material particulars, but such a corroboration need not be confirmed to one on each and every fact mentioned in the retracted extra-judicial confessional statement Even though in order to be treated as reliable, the Court looks for a reproduction in exact words and the reason for the accused in selecting the man to repose confidence in him, the Court can also accept the substance of extra-judicial confession, even if the actual words are not given out by the witnesses in utter exactitude or the version as given by one varies with the narration of events by the other, the Kist remaining the same. It all depends on three factors, as stated by our Supreme Court in Narayan Singh v. State of Madhya Pradesh, the nature of the circumstances, the time of confession and the credibility of the witnesses speaking of such extra-judicial confession. Here such a confession led to the discovery of the incriminating shovel. We place much reliance on the testimony of P.Ws. 1 to 4, especially the village quack doctor, P.W. 2, regarding the manner in which the appellant blurted out the extra-judicial confession by stages, subsequent to the queries put to the accused by his, the time of such confession and the nature and circumstances in which it was made, being taken into account. We believe it to be true and we have no hesitation to act on the basis of the same, more so in view of the fact that the entire gamut of circumstantial evidence on record lead us to an irresistible inference about the culpability of the appellant in having committed the murder of his wife Saburjan Bibi by strangulation which is also corroborated by the post mortem doctor. As was held in Ram Avatar v. State where a series of circumstances are dependent on each other, they should be read as one integrated whole and not considered separately, otherwise the very concept of proof by circumstantial evidence would be defeated. As was held in Ram Avatar v. State where a series of circumstances are dependent on each other, they should be read as one integrated whole and not considered separately, otherwise the very concept of proof by circumstantial evidence would be defeated. We have taken into consideration the cumulative effect of the entire evidence led by the prosecution and we have no hesitation to uphold the conviction of the appellant under section 302 Indian Penal Code. We do not think that there is any possibility for the appellant to escape his culpability by foisting the blame on any other member of his family and even though his version was that he acted on the basis of the errand of his father and his father was given the acquittal, we cannot minimise the culpability of the appellant on that score. 5. IN the result the appeal stands dismissed and the order of conviction and sentence under section 302 Indian Penal Code stand upheld. The appellant who is in jail would undergo the imprisonment for life in such circumstances. Appeal dismissed.