Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 530 (CAL)

HUSENERA BEGUM v. STATE OF WEST BENGAL

2003-10-31

GORACHAND DE

body2003
G. C. DE, J. ( 1 ) THIS criminal appeal was heard by a Division Bench of this Court consisting of Hon'ble Justice Amit Talukdar and Hon'ble Justice Arunava Barua and on 20. 5. 2002, two separate judgments were passed by which the Hon'ble Judges were divided in their opinion - Hon'ble Justice Talukdar took the view that the conviction and sentence passed against the appellant/convict is to be confirmed and the appeal is to be dismissed, whereas Hon'ble Justice Barua took the view that the appeal was to be allowed and the accused/appellant is to be acquitted inasmuch as the prosecution hopelessly failed to prove the guilt of the appellant beyond reasonable doubts. ( 2 ) HENCE under the provisions of section 392 of the Code of Criminal Procedure, the Hon'ble Chief Justice by an order dated 27th August 2002 was pleased to place this matter before this Court. Accordingly, the appeal was taken up for hearing. At the every outset, it is to be mentioned that as two of the Hon'ble Judges of the Bench were divided in their opinion, a duty has been cast on this Court to hear the matter afresh and to deliver the opinion. In Sajjan Singh v. State of Madhya Pradesh in 1999 Supreme Court Cases (Cri) 44, the scope of section 392 of the Code was elaborately discussed and the view taken is that the third Judge is required to rehear and re-examine the matter in its entirety and he is not to sit as an Appellate Court over the judgment of dissension passed by two Hon'ble Judges. In paragraph 10 of the said judgment, it is also viewed:the third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail. ( 3 ) SO keeping in view the law on the point and the duty cast upon this Court under section 392 of the Code, the learned counsel for the appellant/convict as well as the learned Additional Public Prosecutor were heard at length. ( 4 ) THE appellant in this case, Husenera Begum is the wife of the deceased Abdul Karim who at the material time was the Officer-in-Charge of Kusumandi Police Station within District-West Dinajpur. The deceased Abdul Karim at the material time was residing in the quarter of the said police station within his wife, a seven-month old female child, mother-Fatema Begum (PW 4), younger brother-Manjur Alam (PW 2) and a servant-Mustafa. There were three rooms in the quarter and in one room, the mother (PW 4) used to live, in the second room - the brother (PW 2 who was preparing himself to appear in the Higher Secondary Examination used to live and shared the room with the servant Mustafa in the night and the third room was in occupation of the deceased Abdul Karim, the convict Husenera Begum and their seven-month old daughter. On 14. 4. 1972 at about 5-15 a. m. , Manjur Alam (PW 2) lodged an information to the police that his brother Abdul Karim, Officer-in-Charge of the Kusumandi Police Station was found dead on his bed with bullet injuries and on the basis of the said information, Kusumandi P. S. UD Case No. 1 of 1972 was started. In course of investigation of the said case, inquest of the dead body was done. The service revolver of Abdul Karim along with other materials were seized. The body was sent for Post Mortem examination and thereafter, the body was handed over to the relatives of the deceased when it was duly buried. The Autopsy Surgeon Dr. S. K. Majumdar, of Raigunj Hospital could not give any positive opinion and his opinion was that it might be a case of suicide and the injuries might have been caused by bullets fired from a revolver. The Autopsy Surgeon Dr. S. K. Majumdar, of Raigunj Hospital could not give any positive opinion and his opinion was that it might be a case of suicide and the injuries might have been caused by bullets fired from a revolver. ( 5 ) AFTER the burial ceremony was over, a suspicion arose in the mind of the relatives of the deceased and accordingly, a complaint was lodged by the brother of the deceased, Md. Kalimuddin (PW 1) in the Court of the SDJM, Raigunj alleging that his brother Abdul Karim did not commit suicide but was murdered by means of a revolver while he was sleeping. It was also contended that no Post Mortem on the dead body was done and no attempt was made for internal examination of the dead body after dissection. The learned SDJM, Raigunj forwarded the complaint to DIG (CID), West Bengal to start and investigate the case after treating the complaint as FIR. Accordingly Kusumandi P. S. case No. 5 dated 14. 5. 1972 under section 302 of the Indian Penal Code was started against the convict Husenera Begum. The CID, West Bengal investigated the case, arrested Husenera Begum on 16. 12. 1972 and the dead body of the deceased Abdul Karim lifted from the grave on 17. 5. 1972 was sent to Malda Hospital for Post Mortem examination. Dr. B. B. Sarkar (PW 18) held the Post Mortem examination and kept the opinion reserved till the receipt of the report of chemical examiner on the viscera. After the receipt of the chemical examination report, the said doctor gave his opinion that the death was homicidal in nature and it was caused by bullets fired from revolver. On completion of the investigation, a charge-sheet was filed on 19. 1. 1973 against the accused Husenera Begum, the Circle Inspector H. K. Das and the Officer-in-Charge S. B. Kumar. After the committal inquiry under section 207a of the Code of Criminal Procedure, 1898, all the three accused persons were committed to the Court of Sessions. The State challenged the said order of commitment before the learned Sessions Judge, West Dinajpur and after a detailed hearing, the learned Sessions Judge allowed the prayer of the State Government and ordered for commitment of the accused Dr. S. K. Majumdar to the Court of Sessions. Dr. The State challenged the said order of commitment before the learned Sessions Judge, West Dinajpur and after a detailed hearing, the learned Sessions Judge allowed the prayer of the State Government and ordered for commitment of the accused Dr. S. K. Majumdar to the Court of Sessions. Dr. S. K. Majumdar moved this Court against the said order and after hearing, the proceeding against the doctor was quashed by this Court. The State Government moved the Hon'ble Supreme Court challenging the said order of quashing and the Apex Court ordered trial of the accused Dr. S. K. Majumdar. ( 6 ) THEREAFTER charge under sections 201 and 120b of the Indian Penal Code was framed against the accused Dr. S. K. Majumdar. Similarly, charge under section 120b and section 201/109 of the Indian Penal Code was framed against the two police officers Mr. S. B. Kumar and Mr. H. K. Das. A charge under section 302 of the Indian Penal Code was framed against the accused Husenera Begum. ( 7 ) IN course of trial, 29 witnesses were examined by the prosecution. The defence as can be ascertained from the trend of cross-examination of the prosecution witnesses and also from the answer given by the accused under section 313 of the Code of Criminal Procedure is that Abdul Karim committed suicide by fire from his service revolver. Of course no defence witness was examined in this case. The trial Court, after scanning the evidence on record and considering the argument advanced by the learned counsel of the respective parties and also keeping in view the circumstances, came to a conclusion that Husenera Begum committed the murder of Abdul Karim and found her guilty under section 302 of the Indian Penal Code and after hearing her on the question of sentence, convicted her under section 302 of the Indian Penal Code, and sentenced her to suffer imprisonment for life. However, the other three accused persons were found not guilty to the charge levelled against them and accordingly, all of them were acquitted from the respective charges. ( 8 ) IN this appeal the said sentence upon Husenera Begum has been challenged. Mr. However, the other three accused persons were found not guilty to the charge levelled against them and accordingly, all of them were acquitted from the respective charges. ( 8 ) IN this appeal the said sentence upon Husenera Begum has been challenged. Mr. Milon Mukherjee, the learned counsel appearing on behalf of the appellant challenged the finding of the trial Court mainly on the ground that the trial Court found the guilt of the appellant mainly on the basis of circumstantial evidence without considering missing link in the chain. ( 9 ) IT is also argued placing reliance in the decision of the Apex Court in Rabindra Kumar Dey v. State of Orissa reported in 1996 Supreme Court Case (Cri) 1278 that the prosecution must stand on its own leg and the entire onus of proving a case beyond reasonable doubt lies on the prosecution. It is also argued that in a criminal trial, the accused person must be presumed to be innocent unless the guilt is proved against that person beyond any reasonable doubt. ( 10 ) RELIANCE was also placed in a Division Bench decision of the Apex Court reported in 1978 Criminal Law Reporter (SC) 72 (Umed Bhai Jadav Bhai v. State of Gujarat) in support of the contention that when the case depends on circumstantial evidence, the prosecution has to prove that the concatenation of the circumstances leave to one irresistible conclusion that only the accused, and no one else, is guilty of the charge and that there must not be any missing link in the chain. ( 11 ) IT is also argued placing reliance on Madhav Ghosh v. State, 1983 Cr LR 1854 (SC), Budhasatya v. State of Andhra Pradesh, 1995 SCC (Cri) 127 and Ashok Jadav and Ors. v. State of Madhya Pradesh, 1997 Calcutta Criminal Law Reporter 63 (SC) that in a case based on circumstantial evidence the motive must be construed to be an important link in the chain of circumstances. It is argued that in the instant case, the prosecution having failed to prove the motive, the chain is broken and as such, on the basis of incomplete circumstantial evidence alone the accused cannot be found guilty. ( 12 ) IT is also argued that adverse presumption is to be taken against the prosecution case specially in view of non-examination of a vital witness like the servant Mustafa. ( 12 ) IT is also argued that adverse presumption is to be taken against the prosecution case specially in view of non-examination of a vital witness like the servant Mustafa. Similarly, other important witnesses were also not examined by the prosecution indicating that the truth would have been unveiled if those witnesses were placed in cross-examination. ( 13 ) IT was also argued that when the autopsy surgeons differed in their opinion as regards the nature of the injury and death, the benefit of doubt should have been given to the accused. It is also argued that there was no conclusive proof that it was a case of homicide and not that of a suicide. It is clarified that the first post-mortem report was neither placed before the trial Court nor the original was placed before the second autopsy surgeon. On the other hand, the copies of two post-mortem reports were sent to the renowned forensic expert, Prof. (Dr.) J. B. Mukherjee (PW 28) along with other papers for his consideration and report and Prof. Mukherjee, examining those papers opined that ?the gun-shot injuries on the body of the deceased Abdul Karim as described in the post-mortem reports were ante-mortem and homicidal in nature and the injuries thus resulted, either individually or collectively, were sufficient to cause death in the ordinary course of nature?. So, it is contended that such opinion of the expert who did not hold the post-mortem examination himself can easily be rejected in view of the decision taken by the Apex Court in Tauniben Pankaj Kumar v. State of Gujarat 1997 SCC (Cri) 1004 and Eswariah v. State of Karnataka, 1994 SCC (Cri) 601. ( 14 ) MR. Mukherjee also argued at length scanning the evidence of the witnesses in order to show that the complaint by the interested person in this case of suicide was filed after a long gap with an ulterior motive so that the wife of the deceased is deprived of her different financial and civil rights in the event of conviction. So Mr. Mukherjee contended that the accused is to be found not guilty to the charge and consequently be acquitted. ( 15 ) MR. Asimesh Goswami, learned Additional Public Prosecutor appearing on behalf of the State-respondent made a forceful argument in support of the conviction. So Mr. Mukherjee contended that the accused is to be found not guilty to the charge and consequently be acquitted. ( 15 ) MR. Asimesh Goswami, learned Additional Public Prosecutor appearing on behalf of the State-respondent made a forceful argument in support of the conviction. It is clarified that prosecution never depended on the weakness or falsity of the defence case, but there are specific evidence to show that the accused wife and none else was responsible for the murder of Abdul Karim who was sleeping with her inside the bedroom in the fateful night between 13. 4. 72 and 14. 4. 72. It is also contended that there was an endeavour on the part of the investigating agency and the first autopsy surgeon to introduce a story of suicide for which lawful post-mortem examination before the burial of the dead body was not done, but in course of further investigation by the CID, it was detected that it was a case of homicide and not suicide. Accordingly, expert of Prof. Mukherjee (PW 28) was taken and it was confirmed that it was a case of murder. Mr. Goswami further clarified, placing reliance on the evidence of Prof. Mukherjee (PW 28), that a person cannot fire on his own chest five times in the near region. So Mr. Goswami ruled out the story of suicide and made a forceful argument in favour of homicide. It is further clarified that as the wife alone was inside the room at the time of firing from the revolver, the circumstances alone can give a verdict of culpability against the accused wife. Accordingly, Mr. Goswami prayed for confirmation of the sentence. ( 16 ) HOWEVER, Mr. Goswami was fair enough to contend that the incident took place as early as in the year 1972 and even after 30 years, the finality has not been achieved thereby keeping a constant pressure of about 30 years upon the accused who has already become old and for want of a final verdict, the 7-8 month old girl child has attended the age of 30-31 years and could not get a clean chit in the matrimonial home so long the sentence of murder is hanging upon the head of her mother. So Mr. Goswami left the entire matter as regards further sentencing of the accused on the criminal justice system of this country. Mr. So Mr. Goswami left the entire matter as regards further sentencing of the accused on the criminal justice system of this country. Mr. Goswami accordingly left the question of sentence on this Court. ( 17 ) AFTER hearing the learned counsel of both sides and on perusal the materials on record, it is to be noted that : (I)the victim Abdul Karim was on leave from 12. 4. 72 due to his physical ailment. He did not deposit his service revolver before proceeding on leave. (II)the date of inspection of Kusumandi P. S. by the Superintendent of Police was fixed on 14. 4. 72 and the victim worked upto 10-30 a. m. on 13. 4. 72 inside the Police Station and the PW 10, SI, K. P. Mitra was in-charge of Kusumandi P. S. as Abdul Karim took the leave. (III)the victim Abdul Karim before 14. 4. 72 was sick and used to go to doctor for treatment. (IV)the initial statement of PW 2 before the police officer immediately after the incident was that he heard the sound of a firing and after half a minute, there was sound of 3-4 firing originated from the room of the victim and immediately thereafter, the wife of the victim, that is the present appellant-convict came out of the said room after crying loudly. Immediately thereafter, PW 2 and PW 4 entered inside the room and found that the victim was lying and blood was coming out from his chest and the service revolver of the victim was lying in the right hand side of the victim. A G. D. Entry was made immediately by the police officer who was the adjacent neighbour of the victim inside the police quarter. There is specific indication that he ascertained from the PW 2 and the accused that the victim committed suicide by his own service revolver. Accordingly, U. D. Case No. 1 of 1972 was started. (V)immediately after the incident different police officers including the senior police officers of the District and Sub-Division and an Executive Magistrate visited the spot. There is no whisper that any of them considered the incident as homicide. On the other hand, the materials are sufficient to indicate that they confirmed the incident as a case of suicide and accordingly after initial post-mortem examination, they allowed the dead body to be buried. There is no whisper that any of them considered the incident as homicide. On the other hand, the materials are sufficient to indicate that they confirmed the incident as a case of suicide and accordingly after initial post-mortem examination, they allowed the dead body to be buried. (VI)the vital witnesses also clarified that they had no doubt about the cause of death at the time of burial and they considered the cause of death as suicide. (VII) practically after a lapse of a considerable of the widow wife with the child from her matrimonial home. The PW 1, the elder brother of the victim, thought it fit to file a complaint alleging that the wife of the victim was not in good terms with the victim and was absolutely indifferent towards him. It was also hinted that the accused wife picked up intimacy with the ASI, Alauddin who used to visit the accused during the absence of her husband. (VIII)the service revolver of the victim, a life cartridge and five fired cartridge caps were recovered from the room of the victim. (IX)the firing of the victim through the windows of the room is ruled out as the windows were bolted from inside. ( 18 ) THUS the materials on record indicate that there were five injuries on the centre of the chest of the victim. The point of entry and exit and the finding of bullet from the exit point are sufficient to indicate that the firing was done on the victim in the lying position on the bed. The photographs produced indicate that all the five entry points are in close proximity in the middle portion of the chest near the sternum. The arms expert has opined that all the fired cartridge caps recovered from the room indicate that those were fired from the said service revolver which was found on the right hand of the victim. So the trial Court on scrutiny of the evidence on record rightly rule out the possibility of firing on the victim from outside the room. But the trial Court after scanning the evidence on record also ruled out the possibility of suicide and took the view that it was not possible to fire on his own body for five times. On this score he also placed reliance on the opinion of Prof. But the trial Court after scanning the evidence on record also ruled out the possibility of suicide and took the view that it was not possible to fire on his own body for five times. On this score he also placed reliance on the opinion of Prof. J. B. Mukherjee (PW 28) and accordingly, came to the conclusion that it was a case of homicide. The trial Court accordingly concluded that the wife who was inside the room can only be held responsible for such firing and thus came to the conclusion that the wife murdered the husband after firing on him by his own service revolver for five times at a stretch. ( 19 ) SO the entire case depends on the question as to whether the victim committed suicide or he was murdered by the wife-appellant. It is already stated above that the PW 2 and PW 4 who had the occasion to enter into the room of the victim for the first time specifically stated that they heard the sound of firing at about 5 or 5-15 a. m. and after about 30 seconds they heard the sound of four consecutive firing and immediately thereafter the wife of the victim came out of the room crying loudly. Immediately thereafter the PW 2 and PW 4 entered inside the room and found that the victim was lying in a pool of blood on his bed. But subsequently the PW 2 tried to develop the story further and in the complaint it was indicated that immediately after the firing, the PW 2 and PW 4 knocked the room of the victim and thereafter, the wife-appellant opened the door. The PW 2 further added in his evidence that the guilt by which the victim was wrapped was taken to that room by the accused wife few days before. On this score, the clarification is given that as the victim was suffering from different ailments he wanted the guilt for comfort. So the embellishment done subsequently by the PW 2 and PW 4 must be cautiously noted. On this score, the clarification is given that as the victim was suffering from different ailments he wanted the guilt for comfort. So the embellishment done subsequently by the PW 2 and PW 4 must be cautiously noted. It is already stated above that the senior police officers like S. P. , Additional S. P. , SDPO, SDO, the Officers-in-Charge of different Police Stations who visited the spot did not think that it was a case of murder and they considered it as a case of suicide and allowed the dead body to be buried after the post mortem examination. ( 20 ) IN the written complaint as well as in the evidence a case of suicide is converted into a case of homicide mainly on the supposition that a man cannot kill himself by firing on chest for five times. So let it be considered whether a police personnel holding charge of an Officer-in-Charge of a Police Station well-trained in handling a firearm like revolver can fire upon himself for five times in succession to kill himself. From the evidence of the arms expert (PW 26) it appears that five or six lbs. pressure is necessary to pull the trigger of the service revolver of the victim (Mt. Ext. 1 ). It is interesting to note that none of the forensic experts nor the witnesses examined in this case considered the possibility of handling the revolver by using two hands. Even the PW 28 also did not consider this point. It is already pointed out that all the five firings were on the centre of the chest near the sternum. This indicates the possibility of aiming on the centre of the chest by two hands. It is also to be noted that after the first firing there was a gap of about 30 seconds and thereafter, all the four firings were done one after the other. This is indicative of a situation that immediately after the first firing, there was pain and other consequent effect for which sometime was taken to regain the spirit of firing more. The forensic experts do not indicate that immediately after the first firing the victim died. On the other hand, the evidence of the experts are sufficient to indicate that even after getting a first shot, a man can fire if the definite intention is to fire more bullets. The forensic experts do not indicate that immediately after the first firing the victim died. On the other hand, the evidence of the experts are sufficient to indicate that even after getting a first shot, a man can fire if the definite intention is to fire more bullets. In this connection, the answer of Prof. J. B. Mukherjee is reproduced: ?question: If one shot perforates the chest of a person, then in that case, is it possible for the same person to fire successively from his fire arm? answer: It is impossible for a person if he had shot himself over the chest which involved his heart and lung and it will not be possible for him to go on firing upon himself near about the same place four times more than once keeping his hand steady and the target on the spot. In the case of suicide the fire arm in question will be held firmly in the hand of the deceased due to cadaveric spasm and that grip will be very firm and stiff and the weapon cannot be easily taken out from the firmed grip. The injuries found on the dead body were on the vital parts. ? here the expert thought of holding the revolver by one hand but the possibility of gripping the fire arm by two hands was not considered. Be that as it may when the entire case centres round the circumstances this vital question cannot be kept apart. In course of hearing of argument when this question was put to the learned Public Prosecutor, he was fair enough to concede that such a situation was not considered in course of trial of this case. ( 21 ) ANOTHER circumstances was also not taken into consideration though much was stated about the role played by the wife who was supposed to be lying by the side of the husband. The situation might be that after the first firing, the wife tried to snatch away the revolver from the hand of the husband for which there was a time gap of about 30 seconds, but a man destined to kill himself kept the gun in the firmed grip and in course of such scuffling he fired on himself the remaining four rounds with the definite motive of suicide. This justifies the loud cry of the wife and immediate rushing out of the room. This justifies the loud cry of the wife and immediate rushing out of the room. This aspect was also not taken into consideration by any of the experts or the witnesses examined in this case. The above two situations were also not considered by the trial Court which came to a conclusion on mere presumption that a man cannot fire upon himself for five times. In this connection, it is pertinent to mention that the mental condition of a man who wants to commit suicide cannot be judged in the ordinary parlance nor his mental trend would be like an ordinary man. In Modern Criminal Investigation by Harry Soderman, 5th Edition, page 275, there is indication that a person can commit suicide by inflicting repeated gun injuries on the head. This portion was shown to PW 18. But he expressed his ignorance on this psychology. It is also to be noted that immediately on firing a first shot the death cannot be instantaneous and as such, the subsequent four firings cannot be ruled out. So judging from all these standpoints it is to be noted that the prosecution has not been able to clarify these circumstances. This is undoubtedly a missing link in the chain and on its basis, it can safely be said that the death of the victim is still shrowded in mystery and it cannot be conclusively proved that the wife appellant actually fired on her husband for the purpose of killing him. Though motive in a criminal case does not play a very vital role, but in the instant case the motive of the wife has not been explained. On the other hand, there are sufficient indications of the motive of the victim for committing suicide which are his physical ailments, impending inspection of the police station by the Superintendent of Police on 14. 4. 1972 and the intimacy of the wife with the ASI, Alauddin. The trial Court also did not take into consideration these aspects. ( 22 ) SO after a due consideration of all the aspects it cannot be concluded that it was a definite case of homicide. 4. 1972 and the intimacy of the wife with the ASI, Alauddin. The trial Court also did not take into consideration these aspects. ( 22 ) SO after a due consideration of all the aspects it cannot be concluded that it was a definite case of homicide. On the other hand, there are sufficient indications that it might be a case of suicide as was initially detected in the U. D. Case No. 1 of 1972 as well as by the police officers including the senior police officers and administrative officers of the District. There are also different gaps in the evidence which belies the story of homicide. The prosecution has not clarified as to where the child was when the firing was going on. It was also not taken into consideration that if the child was also in the same bed whether the wife, who has not been proved to be an expert in handling fire arms like revolver, could take the risk of firing on the husband keeping the child safe in the same bed close to the husband. Moreover, the blackening mark of the entry points of the bullets are sufficient to indicate that the firing was done from a close range. So if the wife fired for the first time there should have been a resistance from the husband either by the hands or by the feet. But there was no indication that the victim took any steps for private defence immediately after the first firing. If such an action was taken, the possibility of consecutive four firings near the same place of the chest could not be possible. However, there should have been audible cry for help from the victim. So these circumstances also rule out the story of homicide. The trial Court practically came to a conclusion only on presumption rather than on cogent evidence. The circumstances explained are into at all sufficient to complete the chain so as to bring home the charge under section 302 of the Indian Penal Code against the accused-appellant. On the other hand, reasonable doubt is there as regards the part played by the wife. Accordingly, the wife is entitled to get benefit of such doubt. The circumstances explained are into at all sufficient to complete the chain so as to bring home the charge under section 302 of the Indian Penal Code against the accused-appellant. On the other hand, reasonable doubt is there as regards the part played by the wife. Accordingly, the wife is entitled to get benefit of such doubt. ( 23 ) IN view of the above discussion, I am of the opinion that the prosecution has not been able to prove the charge under section 302 of the Indian Penal Code against the appellant Husenera Begum for which the appeal is to be allowed after setting aside the conviction and sentence passed by the trial Court. ( 24 ) THIS opinion be placed before the Hon'ble the Chief Justice for placing before the appropriate Bench. Appeal allowed.