Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 38 (CAL)

GOPALJI BHAGAT v. STATE OF WEST BENGAL

2007-01-29

ALOK KUMAR BASU, KALIDAS MUKHERJEE

body2007
ALOK KUMAR BASU, J. ( 1 ) A very unfortunate story has been placed before us in connection with the present appeal preferred by Gopalji Bhagat, who was found guilty both under Sections 302 and 309 of the I. P. C. and was convicted accordingly by the learned Sessions Judge, cooch Behar in connection with sessions Trial No. 2 (6) of 1991 corresponding to Sessions Case No. 76 of. 1987 and was sentenced to suffer R. I. for life and also to pay a fine of Rs. 6,000/-, in default, to suffer R. I. for three years for the offence under Section 302 of the I. P. C. and he was further sentenced to suffer S. I. for one year for the offence under section 309 of the I. P. C. ( 2 ) ACCORDING to the prosecution case, the present appellant, Gopalji bhagat, was the husband of the deceased housewife, Lilabati, and on the date of the occurrence, which was 10th October, 1983, while Gopalji and Lilabati were in the same room, in the morning hearing the cry of Lilabati when the inmates of the house including the father of Gopalji came and got the door opened, to their utter surprise they found Lilabati already killed being inflicted with several injuries by a sharp-cutting weapon and Gopalji was unconscious on receiving several injuries on his person. ( 3 ) GOVINDAJI Bhagat, father of Gopalji, in his written F. I. R. , however, put the entire responsibility on his own son, Gopalji, alleging, inter alia, that since relation between his son, Gopalji, and his wife, Lilabati, was far from satisfactory and since Gopalji from the first day of his marriage had suspicion about the character of Lilabati, Gopalji Killed Lilabati and thereafter tried to commit suicide. ( 4 ) GOVINDAJI in fact given an oral statement before the Duty Officer of kotwali P. S. which was reduced into writing and the same was treated as f. I. R. and started a specific case both under Sections 302 and 309 of the i. P. C. against Gopalji. ( 4 ) GOVINDAJI in fact given an oral statement before the Duty Officer of kotwali P. S. which was reduced into writing and the same was treated as f. I. R. and started a specific case both under Sections 302 and 309 of the i. P. C. against Gopalji. ( 5 ) THE I. O. during investigation recorded the statement of different witnesses, collected P. M. report of the deceased housewife and finally submitted the charge-sheet supporting the prosecution case against, the present appellant both under Section 302 as well as under Section 309 of the i. P. C. ( 6 ) THE learned Sessions Judge, Cooch Behar after framing the charges against the appellant both under Sections 302 and 309 of the I. P. C. recorded tile statement of several witnesses including the F. I. R. . maker, P. W. 1, mother of the appellant, his uncle, some neighbours, two doctors and finally the I. O. ( 7 ) THE learned Sessions Judge on perusal of the prosecution evidence and after considering the submissions of the learned Advocate for the prosecution as well as the learned Advocate for the appellant, finally held that so far as the statement made out in the F. I. R. is concerned along with the medical report and the opinion of Dr. Nath, Who admitted the appellant in his hospital, it was crystal clear that out of previous grudge the appellant killed his wife, Lilabati, and thereafter tried to commit suicide by inflicting injuries on his person and on such conclusion the learned Judge found no difficulty in convicting the appellant both under Section 302 and under Section 309 of the i. P. C. and the appellant was sentenced accordingly. ( 8 ) APPEARING for the appellant, Mr. Sirkar submits before us after placing the entire prosecution evidence that the entire prosecution case was full of improbabilities and the I. O. without taking the trouble of making full-fledged investigation in accordance with law, found a short-cut method to implicate the appellant simply relying on the FIR of the P. W. 1 which again was not the though of the P. W. 1 but it was the brain-child of the Duty Officer of Kotwali P. S. ( 9 ) MR. Sirkar contends that the P. W. 1 during his substantive evidence before the learned trial Court made a radical departure from the F. I. R. and it is really funny that having regard to such departure from the F. I. R. contention, this witness was not declared hostile to the prosecution and naturally we can rely on the statement of the P. W. 1 given before the Court and we can safely conclude that there was no bitter relation between the husband and the wife. ( 10 ) MR. Sirkar submits that the statement of the P. W. 1 before the learned trial Court was well corroborated both by the mother and the uncle of the appellant, who in their turn deposed that there was no bitter relation between the appellant, Gopalji, and his wife. Lilabati. ( 11 ) MR. Sirkar contends that in a case where prosecution wants to rely on circumstantial evidence alone, native behind the murder certainly assumes greater significance and, in this particular case, from the very beginning prosecution miserably failed to establish the motive element which we gather from the evidence already disclosed. ( 12 ) MR. Sirkar contends that it has come out from the evidence of the inmates of the house that there was only one big window in the room and there was no bar in that window, either wooden or iron, and the window could be opened easily from the outside and in this context Mr. Sirkar has mentioned that according to the I. O. and other witnesses, a pair of Hawai chappal was found in the room of the appellant and curiously enough the I. O. during investigation did not at all try to ascertain who was the actual use of that chappal. ( 13 ) MR. Sirkar, contends that in this case the I. O. actually relied on the testimony of Dr. Nath, who in the bed-head ticket of the appellant made an observation that the appellant suffered self-inflicted injuries but, there is no evidence to substantiate this observation of Dr. Nath. Further Dr. Nath never disclosed the source of his information and the persons, who accompanied the appellant during his admission in the hospital, were never examined by the I. O. , who could have thrown light about the actual occurrence. ( 14 ) MR. Nath. Further Dr. Nath never disclosed the source of his information and the persons, who accompanied the appellant during his admission in the hospital, were never examined by the I. O. , who could have thrown light about the actual occurrence. ( 14 ) MR. Sirkar contends that it should have been the duty of the I. O. to collect scientific evidence when he was in charge of investigation of a murder case and in that context the I. O. who found the dagger inside the room should have arranged for finger-print impression of the appellant so as to match the same with the finger-print impression available with the dagger and that could have been the best possible scientific evidence to implicate the appellant behind the murder of his wife. But in this case the I. O. did not take that step for the reason best known to him. ( 15 ) MR. Sirkar finally contends that in the cross-examination of Dr. Mallick under whom the appellant was in the hospital for treatment and who operated upon the appellant, said Dr. Mallick made it abundantly clear that from the nature of the injuries suffered by the appellant it was almost improbable for a person to make such injuries by himself and this opinion of the expert doctor completely demolished the prosecution case when we look at the prosecution evidence along with evidence of Dr. Mallick. ( 16 ) MR. Mallick, learned Advocate appearing on behalf of the state-respondent, however, submits before us that neither the P. W. 1 nor the mother of the appellant during their examination disclosed the story that any outsider had entered into the room of the appellant and for that reason there was the possibility that the outsider might have killed Lilabati and thereafter might have made attempt to kill the appellant also. Mr. Mallick contends that during cross-examination of the material witnesses of the prosecution including the P. W. 1, no suggestion was given regarding the presence of third party. ( 17 ) MR. Mallick contends that in this case prosecution could not bring any eye-witnesses because the occurrence took place inside the room where only the appellant and his deceased wife were present and naturally prosecution had to rely on circumstantial evidence. ( 18 ) MR. ( 17 ) MR. Mallick contends that in this case prosecution could not bring any eye-witnesses because the occurrence took place inside the room where only the appellant and his deceased wife were present and naturally prosecution had to rely on circumstantial evidence. ( 18 ) MR. Mallick contends that there is no evidence to indicate the presence of a third party and when the housewife was killed in the company of her husband alone, naturally the suspicion was pointed towards the appellant and such suspicion was further corroborated by legal evidence through different prosecution witnesses and for this reason the learned Judge rightly convicted the appellant. ( 19 ) MR. Mallick also submits that it is not the-case of the appellant during cross-examination that the door of the room where the appellant was with his wife was broken and naturally the story that a third party after entering the room through the window committed the crime cannot be accepted. ( 20 ) WE have heard the submissions of the learned Advocate for the appellant as well the learned Advocate for the State-respondent in the background of the prosecution evidence as available with the record. ( 21 ) WE have already stated that the prosecution case indeed presented a very unfortunate story where the housewife within a short time was murdered inside her room where only her husband was present and at the same time we find from prosecution story that the husband was also seriously injured for which he was under medical treatment for a long period. ( 22 ) ACCORDING to prosecution story which came from the F. I. R. of P. W. 1, it was the appellant who out of grudge killed the housewife and thereafter tried to commit suicide and to substantiate this story, as we find from the evidence, prosecution mainly relied on the bed-head-ticket of the appellant as prepared by Dr. Nath and wherefrom it was available that the appellant suffered self-inflicted injuries and from this prosecution wanted to build up the case that the appellant out of grudge had killed his wife and thereafter tried to commit suicide. ( 23 ) WE find from the judgment of the learned trial Judge which has been impugned in this appeal that the learned Judge accepted the prosecution case as made out in the F. IR. ( 23 ) WE find from the judgment of the learned trial Judge which has been impugned in this appeal that the learned Judge accepted the prosecution case as made out in the F. IR. and the learned Judge to accept the prosecution case relied on the bed-head ticket of the appellant as prepared by Dr. Nath. ( 24 ) AFTER considering the submissions of Mr. Sirkar and Mr. Mallick, we find that in this particular case the P. W. 1 during his testimony before the learned trial Court did not support the F. I. R. story either and we did not find a single word supporting the prosecution allegation that the appellant had bad relation with his wife and that he had any motive, either real or apparent, to kill his wife. At the same time we find from the evidence of the mother and the uncle of the appellant that both of them did not support the prosecution story that the appellant had any bitter relation with his wife and for that reason he decided to kill his wife on the fateful date. ( 25 ) THUS, from the prosecution evidence we did not get any motive behind the murder of the unfortunate housewife. ( 26 ) THE next thing which we gather from the submissions of Mr. Sirkar and also from the evidence of the prosecution that the I. O. did not try to ascertain who was actual user or owner of the pair of Hawai chappal which was found in the room of the appellant soon after the occurrence and at the same time the i. O. did not try at all to collect the finger print impression of the appellant and to get the same matched with the finger-print impression available with the dagger although the dagger was found soon after the occurrence inside the room of the appellant by the I. O. ( 27 ) IN a case where prosecution relies on circumstantial evidence, it is the well-accepted principle that the circumstances relied on by the prosecution mast be interlinked with each other and the circumstances taken together will present such a complete and full chain of reasons which itself would point out only to the guilt of the appellant and there would not be any alterative hypothesis wherefrom the innocence of the appellant can also come to surface. ( 28 ) IN this particular case from the statement of the relatives and the neighbours of the appellant who do not get anything wherefrom we may make any adverse presumption against the character of the appellant or about the motive behind the murder of his wife, we do not get any scientific investigation regarding the pair of Hawai chappal, and the dagger found inside the room and what we get in support of the prosecution case is only the observation of the doctor made on the bed-head ticket of the appellant that the appellant has inflicted injuries on his own person. ( 29 ) NATURALLY, for us the real question would be whether the appellant himself Inflicted those injuries and what was the evidence of the prosecution in support of this contention. We find from the cross-examination of Dr. Nath, who filled up the bed-head ticket of the appellant, that nobody ever reported to him that the appellant inflicted injuries himself on his person and we further get from the record that the persons who accompanied the appellant during his admission in the hospital, were not examined and naturally we are not inclined to place any importance on the observations made on the bed-head ticket of the appellant which was not corroborated by any convincing evidence. ( 30 ) NOW coming to the cross-examination of Dr. Mallick, who actually treated the appellant after his admission in the hospitals, we find that Dr. Mallick in most ambiguous terms observed that the injuries suffered by the appellant could not be self-inflicted injuries and when these observations coming from an expert, we find no other option but to hold that like his wife the appellant also suffered an attack in the hand of a third party presence of whom was kept in total mystery by the I. O. for the reason best known to him. ( 31 ) THUS, after considering the entire prosecution evidence in the light of the submissions of both Mr. Sirkar and Mr. Mallick, we are unable to lend support to the observation of the learned trial Judge that prosecution successfully proved the guilt of the appellant. ( 31 ) THUS, after considering the entire prosecution evidence in the light of the submissions of both Mr. Sirkar and Mr. Mallick, we are unable to lend support to the observation of the learned trial Judge that prosecution successfully proved the guilt of the appellant. On the other hand, we are of the view having regard to the prosecution evidence that here was a case where the I. O. totally misdirected himself in collecting the evidence and the learned judge also totally mis-directed himself in appreciating the evidence and thereby he reached a conclusion against the appellant. ( 32 ) ACCORDINGLY, in view of our above discussions, we find merit in the present appeal and we allow the same. ( 33 ) THEREFORE, the appeal preferred by Gopalji Bhagat is hereby allowed, and the order of conviction and sentence against him by the learned sessions Judge, Cooch Behar are hereby set aside. ( 34 ) WE find from the record that the appellant was released on bail during the pendency of this appeal and hence we direct that the appellant be discharged from his bail-bond with immediate effect. ( 35 ) SEND a copy of this judgment and order along with the L. C. R. at once to the learned trial Court for information and necessary action. ( 36 ) URGENT certified copy of this judgment and order if applied for, be supplied to both parties as expeditiously as possible after complying with all legal formalities.