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2005 DIGILAW 85 (GAU)

Bishu Das @ Jishu Das v. State of Assam

2005-02-02

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT A. Hazarica, J. 1. This Criminal appeal is directed against the judgment dated 30.11.99 passed by the learned Sessions Judge at Hailakandi in session case No. 19/99. 2. This is a case of death of an unfortunate young housewife, Smti. Sukhaprabha Das, who died within 3 months from the date of her marriage. The FIR, Ext. 1 was filed by Sri Jogendra Chandra Das, father of Sukhoprahba on 24.07.96, stating inter alia, therein that in the month of "Falgun" (Feb/March) in 1403 B.S., he gave marriage of his daughter to Shri Bishu Das. Around 10 AM on 17.07.96, the mother-in-law of his daughter came to his house and informed that his daughter had been missing since 7/8 AM, that day. She further stated that his daughter might run-away with some boy. On receipt of the news, his wife and eldest daughter went to his daughter's house. After a little while he alongwith four relatives went to his daughter's house. There he came to know that his daughter had died as a result of burn injuries. Along with their family member, he alongwith his relatives went to the jungle near by their house and saw his daughter lying supine, with her head to the south, in a "Muli" (a species of bamboo), bamboo grove which was in the north side of their house. The tongue of the deceased was found between the teeth. The deceased was bleeding from the nose. There were burns from knees to head. A plastic can of kerosene was there on the chest of the deceased. The can was not burnt. The father suspected that Bishu Das i.e. his son in law, Piyush Das and Dilip Das, brOrs. of Bishu Das had killed his daughter, taken her to the pouring kerosene oil. 3. On the basis of the said FIR, Ext. 1, police after usual investigation submitted charge-sheet. The accused was tried for the commission of offence under Section 302 IPC and on conclusion of the trial, the learned Sessions Judge, Haliakandi by impugned judgment convicted and sentenced the accused Appellant to imprisonment for life and to pay a fine of Rs. 3000/-, in default to suffer R 1 for two years more. Hence, the present appeal. 4. The accused was tried for the commission of offence under Section 302 IPC and on conclusion of the trial, the learned Sessions Judge, Haliakandi by impugned judgment convicted and sentenced the accused Appellant to imprisonment for life and to pay a fine of Rs. 3000/-, in default to suffer R 1 for two years more. Hence, the present appeal. 4. The present case, there is no eye witness to the occurrence and the entire case rest on the circumstantial evidence, whereas, the case of the Appellant is that his wife committed suicide. He did not kill her. He had lodged ejahar prior to the ejahar lodged by Ors. . After receipt of his ejahar, police went to the place of occurrence and took away the body of his wife. 5. During trial prosecution examined five witnesses including the doctor and Investigating Officer. The defence did not adduce any evidence. The defence case as emerges from, the answers given during the course of examination under Section 313 Code of Criminal Procedure is of complete denial. 6. Learned Amicus Curiae has submitted that the learned Sessions Judge convicted the accused/Appellant primarily on the basis of medical evidence only which is not justified in view of evidence on record adduced by the prosecution witnesses. Learned P.P. on the other hand supported the conviction and sentence passed by the Trial Court. 7. In view of the above submission we may have a look at the evidence of Dr. Santosh Bhattacharjee, P.W. 5, who held the autopsy on the dead body and found as follows: 1. An irregular ligature mark about 2cm in breadth around the neck above the Cricothyroid and knot is behind and posteriorly to the right ear. On dissection the tissue beneath the skin is of parchment appearance. No dislocation vertebral column found. 2. The whole body was burnt superficially anteriorly and also back side upto the middle third of both the legs. Injury No. 1 is ante-mortem and injury No. 2 is post mortem in nature. 8. In the opinion of the doctor death was due to asphyxia resulting from hanging homicidal in nature. In cross examination he stated that swelling of dead body varies from the causes of the death and in hot and moisture weather it starts about 8/10 hours of the death. Ext. 6 is the post Mortem Report and 6 (1) is the signature of the doctor. In cross examination he stated that swelling of dead body varies from the causes of the death and in hot and moisture weather it starts about 8/10 hours of the death. Ext. 6 is the post Mortem Report and 6 (1) is the signature of the doctor. 9. Now, let us have a look at the depositions of other four prosecution witnesses as to how far they support the medical evidence. 10. P.W. 1, Sri Jogendra Das is the father of the deceased. He deposed on 15.06.99 that his daughter Sukhoprabha Das, the deceased was married with the accused Jishu Das about three years back and after four months of the marriage he brought his daughter to his house. Then after three days his son-in-law Jishu came and took her back to his house. After one day mother of Jishu came to his house and reported that his daughter was missing, on receipt of that information, his wife Soudamini and other two daughters Daimonti and Chandamini went to the house of the accused. They were searching for Sukhoprabha on the north side of the house of the accused in the clutches of bamboo but they were restrained by the mother and grandmother of the accused from doing so. They returned to the house and reported that Sukhoprabha could not be traced out. Then he along with some of his relatives went to the house of the accused for taking information of his missing daughter. On his query made of that regard, the family members of the accused replied that his daughter could not be traced out. Hearing their reply, the P.W. 1 threatened them that he would brought the matter to the notice of the police and left the place. But, after a while, on the way, they heard hue and cry and went back to the house of the accused, they were reported that Sukhoprabha committed suicide by burning and her dead body was recovered from under the clutches of the bamboo on the northern side of their house near a fishery. They went there and found the deceased lying in burning condition having an unburnt jerrycan of kerosene oil over her chest and blood was oozing from her nose. Her tongue came out. P.W. 1 immediately informed the local VDP and its Secretary Boltu and Anil came to the spot. They went there and found the deceased lying in burning condition having an unburnt jerrycan of kerosene oil over her chest and blood was oozing from her nose. Her tongue came out. P.W. 1 immediately informed the local VDP and its Secretary Boltu and Anil came to the spot. As per their advise he lodged ejahar with Katlichera Police vide Ext-1. The police came and took away the dead body for Post Mortem examination. P.W. 1 further deposed that, to his information conjugal life of his daughter with her husband was congenial. 11. P.W. 2 Soundamini Das is the mother of the deceased. She deposed that, mother of Jishu, her son-in-law, came to their house one day and reported that her daughter was missing. On the previous Monday, her daughter was taken by Jishu from their house. Hearing the news, she alongwith her two daughters, Doimanti and Chandmoni went to the house of the accused. She was crying and her two daughters wanted to search their missing sister (the deceased) on the north of the house of the accused, where there was a fishery and bamboo clutches, but they were prohibited by the mother and grandmother of the accused, stating that they had already searched that area. She became a bit senseless and thus she was taken to her house. Thereafter she heard that her daughter died, but did not see the dead body. In cross examination also she repeated that the mother and grand mother of the accused resisted her daughters from searching towards the north of their house. 12. P.W. 3 Rajesh Singh is a neighbour of P.W. 1. This P.W. 3 was declared hostile. We will advert to the evidence of this hostile witness at a later stage. 13. P.W. 4, Sri Tarak Baishya is the Investigating Officer. He had deposed that on 24.07.96 he was the O/C Katlicherra P.S. and on that day on receipt of FIR, Ext. 1, registered a case and took up investigation. Before that, an U.D. case was registered which was inquired by S.I., Sri A. Ali, Choudhury, I/C of Jamira O.P., under Katlicherra P.S. During investigation P.W. 4 visited the place of occurrence, examined the witnesses. He had also tagged the diary of U.D. case with the case Diary, wherefrom it appeared that S.I. A. Ali Choudhury drew up a sketch map of the spot, which was marked as Ext. He had also tagged the diary of U.D. case with the case Diary, wherefrom it appeared that S.I. A. Ali Choudhury drew up a sketch map of the spot, which was marked as Ext. 2 and Ext. 2(1) is the signature of S.I. Ali, P.W. 4 arrested the accused. S.I. Ali had already seized a plastic Jerrycan of kerosene Oil-Ext. 3. He also held inquest over the dead body of deceased vide Ext. 4 and sent the dead body for post Mortem on 18.07.96. Therefore on the basis of the case Diary of U.D. case and case diary prepared by him, submitted charge sheet. In the cross examination P.W. 4 deposed that the U.D. case was reported by accused Bishu Das, husband of the deceased Sukhaprabha on 17.07.96. Ext. 5, and the same was received by the then O/C, S.I. Sri S.N. Choudhury upon which the U.D. case No. 12 was registered. 14. The entire prosecution case rests on the circumstantial evidence, as there is no eye witness to the incident. It is a settled position of law that all judicial evidence is either direct of circumstantial. Evidence is direct when the principal fact is proved directly by witnesses or documents. When it is proved by circumstances, the evidence is indirect and called circumstantial evidence. And the latter may be of two kinds-conclusive and presumptive. Circumstantial evidence is evidence that tends to prove a fact by providing other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue or otherwise. 15. In a catena of decisions it has already been held by the Supreme Court that, conviction can be based solely on circumstantial evidence. However it should be tested by the touchstone of law relating circumstantial evidence laid down by the Supreme Court in Hanumant Govind Nargundkar Case ( AIR 1952 SC 343 ), where the following observation was made, In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take that place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. In such cases there is always the danger that conjecture or suspicion may take that place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge (1838) 2 Lewin 227 where he said: The mind was apt to take a pleasure in adapting circumstances to one Anr., and even in staining them a little, if need be to force them to form parts of one connected whole and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 16. In Mangleswari Prasad v. State of Bihar AIR 1954 SC 715 , the Supreme Court held that, where there is no direct evidence one way or the other and the whole case turns on circumstantial evidence, the circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 17. In the case of State of U.P. v. Dr. Ravindra Prakas Mittal AIR 1992 SC 2045 , the Supreme Court has held that the essential ingredients to prove guilt of an accused by circumstantial evidence are: (a) The circumstances from which the conclusion is drawn should be fully proved. (b) The circumstances should be conclusive in nature. (c) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. (b) The circumstances should be conclusive in nature. (c) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. (d) The circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. Vide (1) Rama Nand v. State of Himachal Pradesh (1981) 1 SCC 511 : AIR 1981 SC 738 (2) Gambir v. State of Maharashtra (1982) 2 SCC 351 : AIR 1982 SC 1157 (3) Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 : AIR 1983 SC 446 (4) Ram Avtar v. State of Delhi Administration 1985 (Supp) SCC 410 : AIR 1985 SC 1692 . 18. In the present case prosecution has relied on the following circumstances: (I) P.W. 2 and her daughters were prohibited by the mother and grandmother of the accused to search Sukhoprabha, the deceased, on the north side of the house of the accused, when they went to search Sukhoprabha there, by saying that they had already searched that area, while, after some time the family member alongwith the accused made hue and cry and reported the father of the deceased that his daughter committed suicide by burning and her dead body was recovered from under the clutches of the bamboo on the northern side of their house near a fishery. (II) The dead body was found lying in burning condition with a jerrycan of kerosene oil over her chest, but the jerrycan was not burnt. (III) As per inquest report blood was oozing out of the nose. The left eye found stained with blood. Mouth closed. Tongue was protruding and was in between the teeth - the same is supported by P.W. 1. (IV) P.W. 5, the doctor, who held post mortem over the dead body - found (1) an irregular ligature mark about 2 cm in breadth around the neck above the cricothyroid and knot is behind and posteriorly to the right ear. (2) The whole body was burnt superficially anteriorly and also back side up to the middle third of both the legs. P.W. 5 had categorically stated that injury No. 1 is ante mortem and injury No. 2 is post mortem in nature. In the opinion of the doctor, he death was due to asphyxia resulting from hanging homicidal in nature. (V) In the FIR lodged by the accused (Ext. P.W. 5 had categorically stated that injury No. 1 is ante mortem and injury No. 2 is post mortem in nature. In the opinion of the doctor, he death was due to asphyxia resulting from hanging homicidal in nature. (V) In the FIR lodged by the accused (Ext. 5) before O/C Katlichera P.S. dated 17.07.96 simply asserting therein that the deceased has committed suicide out of anger in the jungle near his house by pouring kerosene oil and setting herself in fire is discarded by the opinion of the Doctor, P.W. 5, according to whom injury No. 1 was antimortem and injury No. 2 was post mortem. (VI) The accused deliberately misled the police by alleging that his wife committed suicide without giving any detail particular relating to the commission of suicide in convincing manner. 19. We may now recapitulate the circumstances, that emerges from the above, as to how far the circumstantial evidence is unbreakable and justify the murder of Sukhaprabha by her husband, the accused,- (I) The first circumstance that the P.W. 2 mother of the deceased and her daughter Daimonti and Chandmoni were restrained by the family members of the accused from searching the north side of the house of the accused. (II) Finding the dead body by the family of the accused in the north side of the house of the accused, whereas, it was informed by the family members of the accused to the family members of the deceased by saying that the later need not search the north side of the house as the former had already searched that area. (III) Dead body lying "supine" with the head to the south and face and chest up. (IV) Unburnt jerrycan of kerosene oil found over the chest of the deceased. (V) The clothes wore by the deceased were not burnt. (VI) Blood found oozing out of the nose of the deceased. (VII) Left eye of the deceased stained with blood. (VIII) Tongue found protruding in between the teeth. (IX) Non disclosing of alleged cause of suicide (by deceased) by the accused. (X) Injury No. 1 in the post mortem Report i.e. finding of ligature mark about 2 cm in breadth around the neck above and the cricothyroid behind and posteriorly to the right ear. (VIII) Tongue found protruding in between the teeth. (IX) Non disclosing of alleged cause of suicide (by deceased) by the accused. (X) Injury No. 1 in the post mortem Report i.e. finding of ligature mark about 2 cm in breadth around the neck above and the cricothyroid behind and posteriorly to the right ear. Statement made by P.W. 5, the doctor that the injury No. 1 was antimortem and burning of the body was post mortem. Over and above, the opinion rendered by the doctor, P.W. 5 that death was due to "asphyxia" resulting from hanging homicidal in nature. "Asphysia" in medical jurisprudence means, a morbid condition of swooning, suffocation or suspended animation, resulting in death, if not relieved, produced by any serious interference with normal respiration, with a consequent deficiency of oxygen in the blood. Dictionary meaning of "Supine" as found in the Inquest Report means, "Lying on the back, face upward or the hand with the palm upward". 20. Apart from the circumstances stated hereinabove, burn injury without screaming and/or hue and cry is humanly impossible and the said humanly impossible thing has been made possible when the said screaming and hue and cry were not heard or noticed by the accused or by the family members of the accused when the deceased, a 15 years old young married woman alleged to have been committed suicide at a distance of 100 yards from her bed room by pouring kerosene on her body which is unbelievable. 21. All the above circumstances goes to show that the deceased had not committed suicide as alleged by her husband, the accused, but injury No. 1 found by the doctor P.W. 5, i.e. an irregular ligature mark about 2 cm in breadth around the neck above the cricothyroid and knot is behind and posteriorly to the right ear, which was ante mortem and the death was due to asphyxia resulting from hanging which was homicidal in nature and the burning was post mortem caused by the deceased only to cover his crime of cold blooded murder of his newly married wife. 22. As to what was the motive of committing the heinous crime, we may go back to the depositions of P.W. 3 Sri Rajesh Singh, who was declared hostile by the prosecution. 22. As to what was the motive of committing the heinous crime, we may go back to the depositions of P.W. 3 Sri Rajesh Singh, who was declared hostile by the prosecution. The deposition of P.W. 3 is quoted below: Jogendra is my close neighbour and I also know accused, Jishu and Pijush. Suprabha, daughter of Jogendra was married with Jishu alias Bishu. About three years back in one Monday evening I found Jishu and his wife Suprabha were going to their house from the house of Jogendra. In the next Wednesday I heard that Suprabha died by burning, (declared hostile), by prosecution: It is not a fact that I heard that the conjugal lief of Jishu with his wife deceased Suprabha was very much strain and she was killed by her husband by burning and kept in the jungle. 23. But in his statement Under Section 161 Code of Criminal Procedure, this witness has emphatically stated before the police that the accused had married the deceased, approximately five months ago and there was no understanding between them as husband and wife. Very often they quarrel. On 17.07.96 he came to know from Bishu that his wife died due to burn injury as she poured kerosene in her body. She died in the jungle. He further stated that, he firmly believe that, the accused had killed his wife and to show his innocence had put the dead body in the jungle and he himself (the accused), had submitted ejahar in the police station. He further stated that the accused is a bad charactered person. But unfortunately, having given the statements about the facts within his knowledge Under Section 161 Code of Criminal Procedure recorded during investigation, P.W. 3 had resiled from the statements made earlier. But P.W. 3 has not given any reason as to why the investigating Officer could record statements contrary to what he had disclosed. 24. In State of U.P. v. Ramesh Prasad Misra reported in (1996) 10 SCC 360 , the Apex Court has clearly laid down that, portion of the evidence of hostile witnesses, which is consistent with prosecution or defence case can be accepted. 24. In State of U.P. v. Ramesh Prasad Misra reported in (1996) 10 SCC 360 , the Apex Court has clearly laid down that, portion of the evidence of hostile witnesses, which is consistent with prosecution or defence case can be accepted. Fact, that they resiled from their earlier statement made Under Section 161 Code of Criminal Procedure without giving any reasons as to why the Investigating Officer would record statement Under Section 161 Code of Criminal Procedure incorrectly, raises doubts on their subsequent versions in favour of the accused. From the statements made by P.W. 3, therefore amply proves that there was no understanding between the accused and the deceased and that they had strain relationship. 25. Having considered the entire evidence on record, the medical evidence of P.W. 5, the Inquest Report submitted by the Investigating Officer supported corroborated by the circumstances attending the case and cumulative effect of those circumstances negatives the innocence of the accused Appellant and serves as a definite pointer towards his guilt and thus we are in complete agreement with the view taken by the learned Trial Court that it was the Appellant, who killed his wife by hanging and then setting her on fire after pouring kerosine oil on the dead body of the deceased. 26. We therefore, find no reason to interfere with the judgment under appeal. The appeal is accordingly dismissed. Appeal dismissed.