Latu Mia v. State of Tripura — 1995 DIGILAW 30 (GAU)

N.G. Das, J.— This appeal has been filed by the accused in Sessions Case No.3 (WT/A)/87 on the file of the learned Additional Sessions Judge, West Tripura District, Agartala challenging the legality and correctness of his conviction under section 302 of IPC and sentence of imprisonment for life. 2. We have heard Mr. B .Das, the learned senior counsel appearing on behalf of the appellant and Mr. S. Das, the learned Public Prosecutor appearing on behalf of the State of Tripura. 3. The facts necessary to be noticed for disposal of this appeal may succinctly be summarised as follows : The occurrence which led to this prosecution was alleged to have taken place in the residential hut of the appellant who is the husband of the deceased Salema Khatoon in the intervening night of 22.11.85 and 23.11.85. About 2 years before the occurrence deceased Salema Khatoon was married to the appellant who after 2/3 months of his marriage was separated from the mess of his father and thenceforth, it was alleged, appellant started. misbehaving with his wife, namely, the deceased and demanded money. It was also alleged that the appellant wanted to dispose of the gold necklace which the deceased got at the time of her marriage and since she was not agreeable for disposal of the necklace the appellant became annoyed with her. However, out of this wed-lock a daughter was born to the couple. This child died after a few days of the occurrence. It was further alleged that the appellant used to assault the deceased and due to such assault the deceased on a number of occasions came to the residence of her parents which is at a distance of 1V4 Kanis (about 100/150 cubits) from the house of the appellant. However, on each occasion the parents of the deceased sent her back to the house of the appellant. 4. It was further alleged that a few days prior to the date of occurrence the deceased was assaulted by the appellant and she came to the house of her parents who however sent her back to the house, of the appellant and in the evening of 22.11.85 the deceased was found to have been doing the normal house-hold works etc. and she was also found boiling paddy in the house of the appellant. and she was also found boiling paddy in the house of the appellant. But on the night of 23.11.85 at about 3 O' clock Ulfat Ali the elder brother of the appellant and Janab Ali, uncle (husband of the sister of the father of the appellant) came to the house of the parents of the deceased and passed the information to Rejak Mia (PW 1) the brother of the deceased that Salema Khatoon died. On hearing this news Rejak Mia along with his mother and cousin Cherag Ali went to the house of the appellant and on going over there found the deceased Salema Khatoon lying dead on a cot in the hut of the appellant. It was also alleged that at that time they found some froth viz. saliva coming out of the mouth of the deceased and they also noticed some marks of dried tears on eyes. 5. On seeing the external physical condition of the deceased Rejak Mia suspected some foul play and he did not allow appellant and his house inmates to bury the dead body although they were insisting on doing that. So, on that day in the afternoon he came to the Bishalgarh Police Station and submitted a written ejahar to OC, Bishalgarh PS alleging, inter alia, that on the night of 23.11.85 at about 3 O'clock they went to the house of the appellant on receipt of the information that his sister died and since the death of his sister appeared to be suspicious he prevented the appellant and other house inmates from burying the dead body until post mortem examination was over. 6. Sub-Inspector Shri NR Karmakar, who was the In-charge of Police Station received this written ejahar of Rejak Mia on 23.11.1985 at 3.45 PM and thereafter entered the gist of the information in the GD under No.861 dated 23.11.85. Thereafter, OC, Gopal Sarkar (PW 13) endorsed this case to Sub-Inspector Shri Dhruba Narayan Banik (PW 12) for investigation of the case under section 157 of CrPC. Accordingly, SI Shri Banik investigated the case. Thereafter, OC, Gopal Sarkar (PW 13) endorsed this case to Sub-Inspector Shri Dhruba Narayan Banik (PW 12) for investigation of the case under section 157 of CrPC. Accordingly, SI Shri Banik investigated the case. During his investigation, SI Shri Banik visited the place of occurrence, prepared the inquest report of the deceased Salema Khatoon, sent the dead body to the Bishalgarh Primary Health Centre for post mortem examination, recorded the statements of a few witnesses under section 161 of CrPC and thus completing his investigation under section 157 of CrPC, SI Shri Banik arrived at the conclusion that Salema Khatoon was killed by throttling on the night of 23.11.85 in between 22QO hours and 0300 hours and since in the hut there was no one else other than the appellant it was alleged by Shri Banik that the appellant committed the murder and lodged the FIR (Ext P/8) to OC, Bishalgarh PS. 7. On receiving this written FIR from SI, Shri Banik, the OC, Shri DC Sarkar registered the case being Bishalgarh PS Case No. 1 (3)/86 under section 302 of IPC and endorsed the case to SI, Shri R. Karmakar for investigation. Shri Karmakar during investigation interrogated the accused in custody and forwarded him to Court on 1.3.1986. Thereafter, he also visited the place of occurrence but he did not prepare a separate hand-sketch map as on perusal of the index of the map he found it all right. He however, examined witnesses under section 161 of CrPC but did not record separate statements as their statements which were recorded by SI Shri Banik under section 161 of CrPC were found to be all right. SI, Shri Karmakar however, examined a few more witnesses, namely, Karpurer Nessa, Sayed Ali, Julekha Bagum and Neharaunnessa and recorded their statements under section 161 of CrPC. Thus after completing the investigation SI, Shri Karmakar submitted the charge-sheet to OC who in his turn presented it to the Court for prosecution of the appellant under section 302 of IPC. 8. The case being exclusively triable by the Court of Sessions it was committed to the Court of learned Sessions Judge who again transferred it to the Court of learned Additional Sessions Judge. 8. The case being exclusively triable by the Court of Sessions it was committed to the Court of learned Sessions Judge who again transferred it to the Court of learned Additional Sessions Judge. The accused-appellant appeared before the learned Additional Sessions Judge who after hearing" the learned counsel of both the parties and on perusal of the materials framed a charge under section 302-of IPC against the appellant for committing the offence of murder by causing the death of Salema Khatoon intentionally in the intervening night of 22.11.85 and 23.11.85. The charge was readover and explained to the accused-appellant who pleaded not guilty and claimed to be tried. 9. In order to bring home the charge the prosecution examined 13 witnesses in all and also took the aid of documentary evidence, namely, inquest report, post mortem examination report, hand sketch map etc. The accused led no evidence in support of his defence. However, his defence as would appear form the trend of cross-examination of the PWs as well as the statement he gave at the time of his examination under section 313 of CrPC is that this case was instituted falsely against him at the instance of Cherag Ali. 10. Learned Additional Sessions Judge, however, after evaluation of the evidence on record arrived at the conclusion that Salema Khatoon was killed in the intervening night of 22.11.85 and 23.11.85 by throttling and that it was the accused-appellant who caused her death by throttling. Having arrived at the above finding learned Additional Sessions Judge awarded the conviction and sentence as stated above. 11. We have given our utmost consideration to the rival submissions made at the Bar and have quite carefully gone through the evidence recorded in the case as also the findings recorded by the learned Additional Sessions Judge. 12. The first question which came up for consideration is whether Salema Khatoon was killed on the date and time as mentioned in the charge by throttling. Admittedly, there is no eye witness to the occurrence. Mr. B. Das, the learned senior counsel appearing on behalf of the appellant has therefore quite strenuously argued that in view of the facts and circumstances it is impossible to make a conclusive finding that it was the accused-appellant who caused the death of his wife Smti Salema Khatoon by throttling. Admittedly, there is no eye witness to the occurrence. Mr. B. Das, the learned senior counsel appearing on behalf of the appellant has therefore quite strenuously argued that in view of the facts and circumstances it is impossible to make a conclusive finding that it was the accused-appellant who caused the death of his wife Smti Salema Khatoon by throttling. It may, however be noted that in a case of murder what is required to be proved is not conclusive proof, but the proof beyond all reasonable doubt. The contention of Mr. Das is that the post mortem examination report will show that all the organs of the deceased were found normal and there was no external injury particularly on the throt to show that the death of Salema Khatoon was caused by throttling and as such the finding of the learned Additional Sessions Judge is not acceptable. Mr. Das has also drawn our attention to the Medical Jurisprudence by Jaising P. Modi and submitted that in a case of strangulation/throttling which is homicidal in nature, scratches, abrasions, nail marks, bruises on the face, neck and other parts of the body must be present. It is true that Dr. Modi while noting the differences between hanging and strangulation in a tabulated form stated that one of the symptoms of strangulation is presence of scratches, abrasions, nail marks and bruises on the face, neck and other parts of the body. In the present case it is true that neither the inquest report nor the post mortem examination report indicates that there was any sort of external injury/nail, marks or bruises on the person of the deceased. But Dr. Modi has also mentioned other signs which are usually present in the case of strangulation. These are : “1. Mostly Homicidal. 2. Ligature marks horizontal or transverse continuous, round the neck, low down in the thyroid, the base of the groove or furrow being soft and reddish. 3. Abrasions and ecohymosis round about the edges of the ligature mark, common. 4. Sometimes evidence of sexual assault. 5. Subcutaneous tissues under the mark ecohymosed. 6. Injury to the muscles of the neck common. 7. Carotid arteries, internal coats ordinarily ruptured. 8. Fracture of the larynx and trachea, often found also hyoid bone. 9. Fracture-dislocation of the cervical vertebrae rare. 10. 4. Sometimes evidence of sexual assault. 5. Subcutaneous tissues under the mark ecohymosed. 6. Injury to the muscles of the neck common. 7. Carotid arteries, internal coats ordinarily ruptured. 8. Fracture of the larynx and trachea, often found also hyoid bone. 9. Fracture-dislocation of the cervical vertebrae rare. 10. Scratches, abrasions, nail marks and bruises on the face, neck and other parts of the body, usually present. 11. Face, congested, livid and marked with petechiae. 12. Neck, not so. 13. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect). 14. Bleeding from the nose, mouth and ears may be found. 15. Saliva, no such running. 16. Emphysematous bullae on the surface of the lungs, may be present." 13. In the instant case PW 11, Dr. RC Das who conducted the autopsy on the dead body of the deceased Salema Khatoon found the following internal injuries : (i) Pleurae congested; (ii) fracture of hyoid bone on the right side with blood stained froth in the larynx; (iii) right lung and left lung congested; (iv) pericardium congested; (v) right side of the heart was full of dark clotted blood; (vi) rupture of the sheath of carotid artary on the right side of the neck; (vii) tongue was found protruded out of the oral cavity with opening of the mouth and blood stained discharged on the side of the mouth (external); (viii) puffyness on the face; (ix) Congesion in the liver, spleen and kidneys. 14. If we now make a comparative study with the symptoms which the doctor found on the person of the deceased with that of the symptom mentioned by Dr. Modi then it will appear that most of the symptoms found by the doctor correspond with that of what are mentioned in the Modi's Jurisprudence. It is however, mentioned by Dr. Modi in tabulated form that one of the signs of strangulation is presence of skratches, abrasion, nail marks and bruises on the face, neck and other parts of the body. But it is specifically stated that those are usually present. It is not stated that marks of skratches of bruises are must. Dr. It is however, mentioned by Dr. Modi in tabulated form that one of the signs of strangulation is presence of skratches, abrasion, nail marks and bruises on the face, neck and other parts of the body. But it is specifically stated that those are usually present. It is not stated that marks of skratches of bruises are must. Dr. Modi under the heading "whether death was caused by Strangulation"- stated that no inference should be drawn simply from a ligature mark, for it may be indistinct or absent, if a soft ligature like silk is used and may be produced by the application of a ligature to the neck even after death. But it is stated that right side of the heart will be full of dark fluid blood and left empty. In the instant case doctor also found as stated above that the right side of the lung was congested and the right side of the heart was full of dark clotted blood and the left side of the heart was empty. He also found fracture of hyoid bone on the right side with blood stained froth in the larynx. 15. In the Twenty-first Edition of Modi's Medical Jurisprudence and Toxicology edited by CA Franklin it was stated at page 200 under the heading, "whether death was caused by strangulation"- that the natural folds of the skin especially of a stout person rarely produce marks on the neck which may look like those found after strangulation. 16. In the Medical Jurisprudence and Toxicology of HWV Cox by Dr. Bernard Knight it is found that there may be insufficient time for change to occur in the skin. But internally, the hyoid is more likely to be fractured. Similarly, in the Thirteenth Edition of Taylor's Principles and Practice of Medical Jurisprudence it is found at page 306 under the heading "Finger marks" that marks of pressure of fingers may be slight. But internally, the hyoid is more likely to be fractured. Similarly, in the Thirteenth Edition of Taylor's Principles and Practice of Medical Jurisprudence it is found at page 306 under the heading "Finger marks" that marks of pressure of fingers may be slight. It is also stated under the above heading that "the absence of bruising upon the skin, especially when deep-seated bruising is present, can be accounted for by the maintenance of pressure until death has supervened, since compression of the skin will empty the vessels in it with comparative case during life and the heart may have ceased to beat before the pressure has been removed." This statement also indicates that in a case of manual strangulation there may be absence of bruising upon the skin. 17. So, in view of the opinions of different authorities stated above, we are of the view that even in absence of external marks a person may be killed by manual strangulation. In the instant case it is found in the evidence of doctor (PW 11) that not only he found fracture of the hyoid bone, but other signs as noted above also corresponded with most of the signs of the tabular form given by Dr. Modi. We are therefore, of the opinion that Salema Khatoon was killed by throttling/strangulation in the intervening night of 22.11.85 and 23.11.85. 18. Now the crucial question which is to be determined is whether appellant, was responsible for causing the death of his wife. In appreciating the arguments in this regard the scene of occurrence gains much importance. The prosecution case is that both the appellant and deceased used to live in the western viti hut and in that hut no one else used to live. PW 1 Rejak Mia deposed that on the night of 23.11.85 at about 3 PM Ulfat Ali, the elder brother of the appellant and Jonab Ali, uncle of appellant came to his house and passed the information of the death of his sister Salema Khatoon. According to him on receiving this information he along with his mother and Cherag Ali went to the house of the appellant and found his sister Salema Khatoon lyingidead on a cot in the western viti hut. 19. According to him on receiving this information he along with his mother and Cherag Ali went to the house of the appellant and found his sister Salema Khatoon lyingidead on a cot in the western viti hut. 19. PW 2, Cherag Ali deposed that when he went to the house of the appellant on the night he found Salema Khatoon lying dead on a cot in the western viti hut. He further deposed that there were 2 huts in the house of appellant, one on the western viti and the other on the eastern viti. According to him appellant and his wife Salema used to sleep in the eastern viti hut and elder brother of appellant and his mother used to reside in the eastern viti hut. This part of his evidence has not been challenged in the cross-examination. Similarly, PW 4 Janab Uddin whose hut was situated to the east of the same home-stead deposed that appellant and his wife used to reside in the western viti hut and on the night of occurrence when he went to the western viti hut of appellant he found Salema lying dead on the cot. Evidence of this witness in this respect was not challenged in the cross-examination. PW 9 who is the mother of the deceased also deposed to the same effect. She stated that as she went to the house of the appellant on that night she found Salema lying on a cot of western viti hut. 20. So, having regard to the evidence discussed above we feel no hesitation to come to the conclusion that on the night of occurrence appellant and the deceased were staying in the western viti hut and there was no one else in that hut. 21. The next circumstance relied on by the prosecution is that both the appellant and his wife were not on good terms for some time past. PW 1 deposed that after solemnization of their marriage the couple lived peacefully for some time. But thereafter quarrel started between them and the appellant used to assault his sister for money. It is further stated by him that on a number of occasions his sister came back to their house due to the assault by the appellant. PW 2 also stated in his deposition that some time after their marriage the relation between the appellant and the deceased became strained. It is further stated by him that on a number of occasions his sister came back to their house due to the assault by the appellant. PW 2 also stated in his deposition that some time after their marriage the relation between the appellant and the deceased became strained. PW 3 Saved Ali who is a man of 80 years deposed that the deceased was his grand-daughter and the relation between the appellant and the deceased was not good. He deposed that the appellant used to assault the deceased and due to his such behaviour deceased used to go to the house of her parents. Her also stated that 4/5 days prior to the date of occurrence the deceased came to his house and told him that she would never go back to the house of her husband at any cost. But he after persuasion took her to the house of the appellant. The witness has been cross-examined but we find nothing there to disregard his version that the relation between the appellant and the deceased was strained before the date of occurrence. PW 4 who is a resident of the same home-stead stated that after some time of their marriage they used to quarrel with each other. PW 5 Nehara Khatoon and PW 9 Karpurer Nessa also deposed to the same effect. We have quite carefully gone through their evidence but we find nothing in their cross-examination to disbelieve there version that the relation between the appellant and the deceased was strained. 22. The fourth circumstances relied on by the prosecution is that in the evening of 22.11.85 Salema was found boiling paddy in the house of the appellant and she was found physically all right. PW 1 deposed that in the evening of that day he found his sister Salema boiling paddy. PW 3 who is a resident of the same home-stead also corroborated the version of PW 1 by stating that in the evening of that day he found Salema boiling paddy and that she was not suffering from any sort of illness. We have quite carefully gone through his cross-examination but we find nothing to disregard the evidence of this witness. Similarly, PW 4 and PW 5 also stated that in the evening of that day Salema was boiling paddy and that she was not suffering from any sort of illness. We have quite carefully gone through his cross-examination but we find nothing to disregard the evidence of this witness. Similarly, PW 4 and PW 5 also stated that in the evening of that day Salema was boiling paddy and that she was not suffering from any sort of illness. These witnesses have been thoroughly cross-examined but nothing could be elicited to disregard their versions. In this context, it may also be noted here that the doctor PW 11 who conducted the autopsy on the dead body of deceased did not notice any sort of disease other than the signs of throttling as mentioned above on the person of the deceased. It is also not the case of the appellant that deceased was suffering from any disease or that she died on account of some disease. 23. Hence, in view of the evidence discussed above we are of the view that on the night of occurrence deceased was physically all right and she was not suffering from any disease. 24. So, while accepting the evidence of Doctor the other circumstances listed above had in our view also been finally established. Hence, once circumstance No.1 namely, Salema met a homicidal death due to throttling is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Salema's death no third person excepting the accused-appellant and the deceased was present in the house, it will inescapably lead to the conclusion that in all human probability it was the accused-appellant and none else, who had murdered the deceased by throttling/strangulating her to death. 25. For the foregoing reasons, we uphold the conviction and sentence of the appellant under section 302, IPC and dismiss this appeal. The appellant is on bail and hence he must surrender at once to serve out the sentence. The period of detention, if any, undergone by the appellant during investigation, enquiry or trial of the same case be set off against the terms of imprisonment.