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2009 DIGILAW 146 (GAU)

Sujit Rudra Paul v. State of Tripura

2009-02-26

B.D.AGARWAL, BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. This Appeal is directed against the judgment of conviction and sentence dated 4-8-2006 passed by the learned Additional Sessions Judge, North Tripura, Kailasahar in Case No. Sessions Trail 18 (NT/K) of 2006 convicting the accused appellant under Section 302, I.P.C. and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 2,000/- and in default to suffer rigorous imprisonment for one month. 2. The prosecution case is based on the FIR dated 23-5-2004, proceeded by the FIR dated 20-5-2004 lodged by one Sri Dhananjoy Rudra Paul, father of the accused appellant and who was also the co-accused along with the accused appellant, but acquitted by the learned Additional Sessions Judge. For a ready reference, the FIR is quoted below: My humble submission is that my daughter in law named Purnima Rudra Paul (19 years) alias Laxmi w/o. Shri Sujit Rudra Paul of the resident of vill-Mainama, under the police station Langtaraivelly has died at any time within the period from 19-5-2004 at night about 9.30 O'clock to about 7.30 O'clock in the morning D/- 20-5-2004 A/D in his own hut over the cot and, I found such incident at 7.30 O'clock today. I do not know the cause of the death of my daughter in law. Therefore, it is humbly prayed that any step be taken for making an investigation into the unnatural death of her. 3. After the aforesaid FIR was lodged on 20-5-2004, the father of the deceased also lodged an FIR on 23-5-2004 with the same police station furnishing information that the deceased had informed her mother that she was maltreated by her husband, father-in-law and mother-in-law physically and mentally as her husband had illicit relationship with another lady. It was further informed that his daughter was killed in the house of the accused persons. It was further informed that his daughter was killed in the house of the accused persons. For a ready reference, this FIR is also quoted below: My humble submission is that my only daughter named purnima Rudra Paul (14 years) was given in marriage with the accused No. 1 at my own residence as per Hindu rites and customs on the 23rd day of the month of Falgoon in the year 1410 B.S., as per Bengali calendar year and as per their claims and demands we have given all the wedding gifts in the marriage and on 5th day of the month of last Baisakh I had taken my daughter to my house on Niyar with the consent of them (the members of the house of my daughter's in law). Again while she had returned to her matrimonial house then daughter informed her mother that she was maltreated by her husband, father-in-law and mother-in-law physically and mentally as her husband has illicit relationship. After staying 15 (fifteen) days in my house her father-in-law, the accused No. 2 came and had taken her to her in-law's house and on 19-5-2004 A. D. at night my daughter was killed in the house of the accused at Maynama planwise with cool brain. Therefore, it is humbly prayed that a proper justice be given on investigation into the said incident. 4. On the basis of the investigation carried out by the police, charge sheet was submitted against all the three accused persons and the learned Additional Sessions Judge also framed charge as follows: I Sri N.K. Sinha, Addl. Sessions Judge, North Tripura, Kailashahar, do hereby charge you namely Sri Dhananjoy Rudra Paul, Sujit Rudra Paul and Smt. Helen Rudra Paul as follows: Firstly that you on 19-5-04 at any time at Mainama under Manu P. S. agreed to do an illegal act namely murder of Purnima Rudra Paul which is punishable with death or imprisonment for life and thereby committed an offence punishable under Section 120B of I.P.C. and within my cognizance. Secondly, that you all on the night of 19-5-04 at any time at Mainama committed murder intentionally causing death of Purnima Rudra Paul and thereby committed an offence punishable under Section 302 of I.P.C. and within the cognizance of this Court. And I hereby direct that you be tried on the said charge by this Court. 5. Secondly, that you all on the night of 19-5-04 at any time at Mainama committed murder intentionally causing death of Purnima Rudra Paul and thereby committed an offence punishable under Section 302 of I.P.C. and within the cognizance of this Court. And I hereby direct that you be tried on the said charge by this Court. 5. The prosecution examined altogether 9 witnesses and the learned Trial Court after examining the evidence on record did not find any incriminating evidence against Smt. Helen Rudra Paul, the mother-in-law of the deceased and she was acquitted by order dated 11-7-2006 upon hearing both the sides under Section 232, Cr. P. C. However, the trial commenced against the accused appellant along with his father who initially lodged the FIR on 20-5-2004. Both of them were examined under Section 313, Cr. P. C. and they denied their accusation. They also declined to adduce any evidence. 6. The learned Additional Sessions Judge by the impugned judgment of conviction and sentence has held the accused appellant guilty of the offence under Section 302, I.P.C. However, he has acquitted his father as he was of the opinion that there was doubt about the involvement of the father of the accused appellant. 7. The finding arrived at by the learned trial Court is solely on the basis of the circumstantial evidence. It was said long time ago by the Apex Court in Hanumant v. State of M.P. reported in AIR 1952 SC 343 that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be 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 a conclusive nature and tendency and they should be of 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. 8. 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. 8. It is settled that the conviction can be based solely on circumstantial evidence, but it should be tested in the 'touchstone of law relating thereto as laid down by the Apex Court in the aforesaid decision of the Apex Court as well as in Sharad Birdhi Chand Sarda v. State of Maharashtra reported in. In Hodge case reported in 168 ER 1136, it was held (ER at p. 1137): Alderson, B. told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, 'not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be consistent with any other rational conclusion than that the prisoner was the guilty person. He then pointed out them the proneness of the human mind to look for - and often slightly to distort the facts in order to establish such a proposition - forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. 9. As has been held in Sharad Birdhichand Sarda 1984 Cri LJ 1738 (supra), the circumstances from which the conclusion of guilt is to be drawn should be fully established. As observed by the Apex Court, the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved", as was held by the Apex Court in Shivaji Sahabrao Bobade v. State of Maharashtra reported in where the following observations were made: Certainly, It is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion, consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 10. The above five golden principles in the words of the Apex Court in Sharad Birdhichand Sarda 1985 Cri LJ 1738 (supra) constitute the Panchsheel of the proof of case based on circumstantial evidence. 11. Keeping in mind in the above position of law relating to establishing the guilt 'on the basis of circumstantial evidence, let us now examine the evidence on record to find out as to whether the guilt against the accused appellant has been established so as to convict him under Section 302, I.P.C. 12. PWs 1 and 2 are the parents of the deceased daughter. In their depositions, they stated about the marriage of their daughter with the accused appellant. Soon after the marriage when she came to her parental home, she was asked as to whether she was living peacefully in her matrimonial home or not. According to these two prosecution witnesses, their deceased daughter replied in the negative. Further statement allegedly made by their daughter to them was that her husband had a relation with a tribal girl and that her father-in-law used to see television in her room whenever her husband was absent and that on 2/3 occasions he also tried to molest her. On being informed, her husband told her that he had nothing to do with the same. According to these two witnesses upon hearing such a story from their deceased daughter they advised her to get herself adjusted in her matrimonial home. 13. As regards the incident on the fateful date, these two witnesses stated that they received a telephonic call about the death of their daughter and the PW 1 rushed to the place of occurrence i.e. the matrimonial home of the deceased. 13. As regards the incident on the fateful date, these two witnesses stated that they received a telephonic call about the death of their daughter and the PW 1 rushed to the place of occurrence i.e. the matrimonial home of the deceased. PW 1 could see the dead body of his daughter in the courtyard of Dhananjoy Rudra Paul. PW 2 also went to the place of occurrence and could see the same thing. Thereafter the PW 1 lodged the FIR. In their cross-examination, they stated that they did not inform anybody about the alleged maltreatment meted out to their daughter by the accused appellant, father-in-law and mother-in-law. It was admitted in the cross-examination that in the FIR no details about such ill treatment were furnished. PW 2 although deposed about the aforesaid role of the father-in-law, but in the cross-examination it was brought out that no such statement was made before the I.O. 14. PW 3 and PW 4 are independent witnesses. They are the neighbourers of the accused appellant. In their depositions they stated that they did not know the cause of death. PW 3 also stated that the deceased did not tell that she was ill treated by her husband and in-laws. PW 4 in his cross-examination stated that he did not hear anything regarding the culprits who killed the deceased. He further stated that on the date of death of the deceased, the accused appellant and his mother were absent as they had gone to Silchar in connection with treatment there. 15. PW 4 is also a neighbour of the accused appellant. He was a signatory to the seizure list. He stated that the dead body was sent for postmortem examination and that the police had seized Saree, Blouse and Peticoat of the deceased. The police also seized the loongi and half pant belonging to Dhananjoy Rudra Paul. In the cross-examination, he also stated that on the date of occurrence, the accused appellant along with his mother was at Silchar in connection with treatment there. 16. PW 6 is the brother of the PW 1 and thus an interested witness. He in his deposition repeated the version of the PWs 1 and 2. In the cross-examination, he also stated that on the date of occurrence, the accused appellant along with his mother was at Silchar in connection with treatment there. 16. PW 6 is the brother of the PW 1 and thus an interested witness. He in his deposition repeated the version of the PWs 1 and 2. In his cross-examination, although the PW 7 stated that he had stated before the I.O. about the love affairs of the accused appellant with a tribal girl, but it was pointed out to him that there was no such statement before the I. O. PW 7 was declared hostile, who in his deposition to the cross-examination by the defence also stated about the absence of the petitioner along with his mother on the date of occurrence as they had gone to Silchar for the purpose of treatment. In his cross-examination by the prosecution, he denied that the relationship between the deceased and the accused appellant was not good because of the love affairs of the accused appellant with the tribal girl. He also denied the suggestion that the accused appellant murdered the deceased in a planned manner. 17. PW 8 the I. O. of the case stated that he investigated the case and during investigation he recorded the statement of witnesses, prepared hand sketch map with index, prepared inquest report of the dead body, made arrangement for holding PM examination, seized some articles by preparing seizure list and after collecting medical report he submitted charge sheet against the accused persons. In his cross-examination he stated that index B and D indicate that the hut in question belong to Dhananjoy Rudra Paul. He admitted that he did not record the statement of the tribal girl with whom the accused appellant had love affair. 18. PW 9 is the doctor, who conducted the postmortem examination, after which he was of the opinion that the cause of death of the deceased was due to asphyxia, which is homicidal in nature. In his cross-examination, referring to his preliminary report, he stated that heart, lung and vaginal swab were sent to Central Forensic Laboratory and that in his report there was no indication identifying the dead body of the deceased. He denied the suggestion that his opinion relating to the cause of death was not correct. 19. In his cross-examination, referring to his preliminary report, he stated that heart, lung and vaginal swab were sent to Central Forensic Laboratory and that in his report there was no indication identifying the dead body of the deceased. He denied the suggestion that his opinion relating to the cause of death was not correct. 19. It is on the basis of the above evidence on record the learned Additional Sessions Judge in the impugned judgment after observing that the entire case of the prosecution rested upon circumstantial evidence and that the prosecution must establish that the chain of circumstances was complete in order to hold the accused guilty, has held that the circumstantial evidence establishes the guilt of the accused appellant under Section 302, I.P.C. To bring home the conviction of the accused appellant, the learned Trial Court has also referred to certain decisions of the Apex Court and the High Court. Admittedly, there is no any direct evidence to show that the accused person committed the murder of the deceased. 20. While Mr. B. Debnath, learned Counsel appearing for the accused appellant took the pain to refer to the entire evidence on record so as to contend that the prosecution has miserably failed to establish the guilt of the accused appellant on the basis of any circumstantial evidence, Mr. R. Debnath, learned Addl. P. P. argued that the impugned judgment of conviction and sentence warrants no interference. Mr. Debnath learned Counsel for the accused appellant also submitted that in absence of any motive attributed and proved against the accused appellant, it cannot be said to be a case of establishing the charge on the basis of the so-called circumstantial evidence, In this connection, he has referred to the decision of the Apex Court in State (Delhi Administration) v. Sri Gulzari Lal Tendon reported in 1979 SCC (Cri) 526, in which, it was held by the Apex Court that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused, 20A. We have considered the matter in its entirety taking into account the evidence on record as well as the submissions advanced by the learned Counsel for the parties. We have considered the matter in its entirety taking into account the evidence on record as well as the submissions advanced by the learned Counsel for the parties. What has transpired from the impugned judgment of conviction is that the learned Additional Sessions Judge tilted the scale against the accused appellant holding the same to be based on the circumstantial evidence and the chain of events and the chain of circumstances is complete. Such finding has been arrived at primarily on the basis of the medical opinion rendered by the doctor i.e. the PW 9. As per the said medical report (Ext. 4), the PW 9 also found two numbers of bruise in oblique direction measuring-one-third length of old finger on the right side of the neck. It is on that basis the learned Trial Court arrived at the conclusion that the death of the deceased was homicidal in nature. While arriving at such a finding, the learned Trial Court has not addressed to the moot question as to whether the purported bruises of finger on the neck of the deceased was of the accused appellant and that the statement of the PW 9 in his cross-examination was that, in his report he did not mention about identifying the dead body of the deceased. The fact that the Central Forensic Laboratory report was also not available was not taken into consideration. 21. Another circumstance, which prevailed over the learned Trial Court to hold that the instant case to be a case of establishing the guilt on the basis of circumstantial evidence is the depositions of PW 1, PW 2 and PW 6 who are all related. They in their depositions stated in verbatim against the alleged ill treatment meted out to the deceased by her in-laws and the accused appellant. The said witnesses never disclosed before the IO about such stand of the deceased allegedly disclosed to the PW1 and PW2. It is also not in evidence that the term "maltreatment" is elaborative in nature. They in their depositions stated in verbatim against the alleged ill treatment meted out to the deceased by her in-laws and the accused appellant. The said witnesses never disclosed before the IO about such stand of the deceased allegedly disclosed to the PW1 and PW2. It is also not in evidence that the term "maltreatment" is elaborative in nature. This being a relative term as per the understanding of the person concerned, merely because the deceased had allegedly informed the PW 1 and PW 2 about the maltreatment meted out to her allegedly by the in-laws and the accused appellant, same by itself cannot lead to the inference that the deceased was killed by the accused appellant, more so o, when the said witnesses never disclosed the same to anyone including the I.O. 22. Another circumstance, which has weighed the mind of the learned Trial Judge, is the alleged affair of the accused appellant with the tribal girl. There is nothing in evidence regarding the alleged love affairs of the accused appellant. Not only that, there is also no link of the said love affair, even if said to be was in existence, to the cause of death of the deceased wife of the accused appellant. The learned Trial Judge has also disbelieved the version of the three prosecution witnesses namely PW 4, PW 5 and PW 7, who in their depositions categorically stated about the absence of the accused appellant in the house of the date of occurrence. Even if the statement of the PW 7 who was declared hostile is disbelieved, there is no explanation as to why the own witnesses of the prosecution i.e. PW 4 and PW 5 should be disbelieved. 23. As regards the statement of the accused appellant under Section 313, Cr. P. C, the learned Additional Sessions Judge has held that both the accused persons failed to offer any kind of explanation regarding death of the deceased. We have carefully gone through the statement of the accused appellant made under Section 313, Cr. P. C. and what we find is that the accused appellant was never informed of the circumstances appearing against him. The circumstances based on which the learned Trial Judge has held the case to be a case of conclusive circumstantial evidence were not put to the accused appellant in his statement under Section 313, Cr. P. C. and what we find is that the accused appellant was never informed of the circumstances appearing against him. The circumstances based on which the learned Trial Judge has held the case to be a case of conclusive circumstantial evidence were not put to the accused appellant in his statement under Section 313, Cr. P. C. The accused appellant did not have any chance to explain them. The Apex Court in the case of Hate Singh Bhagat Singh v. State of M.P. reported in AIR 1953 SC 468 held that any circumstance in respect of which an accused was not examined under Section 343 of the then Cr. P. C. cannot be used against him. Since then, there is a catena of authorities of the Apex Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of the Old Cr. P. C. (corresponding to Section 313 of the Cr. P. C., 1973), the same cannot be used against them. 24. In the instant case, the prosecution made an attempt to show that the death of the victim was caused by strangulation. The prosecution in a case of commission of murder by strangulation must bring in record, some evidence linking the accused therewith. Although, the P.W. 9 in his report stated about the finger mark on the neck of the victim, but the same has not been identified to be that of the accused appellant. No fingerprint of the accused appellant was taken to show that it was he who had committed the murder. No incriminating evidence linking the accused appellant in regard to strangulation has been brought on record. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed the offence, existence of materials therefore ought to have been found. The prosecution did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. There was no evidence of any mark of struggle by and between the deceased and the accused. 25. The prosecution did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. There was no evidence of any mark of struggle by and between the deceased and the accused. 25. As has been held by the Apex Court in Vinay D. Nagar v. State of Rajasthan reported in where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so 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. 26. The learned trial Court has based the conviction on the basis of the evidence of the P.W. 1, P.W. 2 and P.W. 6, who are all interested and partisan witnesses. More significant is the conduct of the said prosecution witnesses. On the day of the alleged crime they did not suspect the appellant in any manner whatsoever. They also did not report to any one about the alleged maltreatment meted out to the victim by her in-laws and the accused appellant. The fact that the deceased was last seen with the accused appellant should have been specifically disclosed in the FIR. Suspicion was raised about the involvement of the accused appellant along with his parents, much after the first FIR was lodged by the father of the accused appellant. In such a situation, it cannot be said to be a case where an offence is said to have been established on circumstantial evidence alone in which indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda 1984 Cri LJ 1738 (supra). 27. In the present case the motive was alleged to be the love affairs of the accused appellant with the undisclosed tribal girl. 27. In the present case the motive was alleged to be the love affairs of the accused appellant with the undisclosed tribal girl. However, there was absolutely no evidence to link up the said alleged love affair with that of the murder of the victim, one of the reasons given by the learned Trial Judge for holding the accused appellant guilty of the offence under Section 302, I.P.C. The prosecution miserably failed to establish the existence of a motive. Undoubtedly, the mainstay of the prosecution case was the testimony of the PW 1, PW 2 and PW 6, all related witnesses. There is absolutely no evidence or circumstance attributing the commission of the offence by the accused appellant on that score. It is in this context, learned Counsel for the accused appellant has placed reliance on the decision in Gulzari Lal Tendon (supra), in which the Apex Court dealing with the case of conviction on circumstantial evidence held that motive undoubtedly plays an important part in order to tilt the scale against the accused. As in the instant case, that was also a case of alleged murder of the newly wedded wife. 28. Much was emphasized by the learned P. P. about the theory of last seen together. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain but unless the time gap between the deceased having been last seen in the company of the accused person and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. There cannot be any doubt that conviction can be based on circumstantial evidence, but therefore the prosecution was to establish that the chain of circumstances only consistently points to the guilt of the accused and is inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. The instant case cannot be said to have withstood the said test required to be established by the prosecution. 29. There is another aspect of the matter. They have to be taken into consideration cumulatively. They must be able to conclude that within all human probability the accused committed the crime. The instant case cannot be said to have withstood the said test required to be established by the prosecution. 29. There is another aspect of the matter. Initially, not only the accused appellant, but his parents were also charged for the murder of the victim. It was the story of the prosecution that the said three persons used to ill-treat the victim. However, the in-laws of the victim have been granted benefit of doubt, but the accused appellant has been convicted under Section 302, I.P.C. holding that the burden shifted to him to show as to how his wife died. We are of the considered opinion that the learned trial Judge has committed serious error in arriving at such conclusion. It is in the evidence that the father-in-law of the deceased, who was the co-accused along with the accused appellant used to visit her (the deceased) room and on few occasions tried to molest her. However, the learned Trial Court has given him the benefit of doubt and has convicted the accused appellant on the basis of the three circumstances namely, his purported love affairs with a tribal girl, ill treatment meted out to the victim by him and his parents and they were together before her death. There was absolutely no evidence to establish the love affairs of the accused appellant and to link up the same as the motive to kill his wife. There is also no explanation as to what kind of ill treatment it was and what was the motive behind the same. It is also not the case of the prosecution that the accused appellant was with the victim on the night of the occurrence. Even otherwise also, the circumstance of last seen together by itself would not necessarily lead to the inference that it was the appellant who committed the crime. 30. We then pass on to another important point, which seems to have being completely missed by the Trial Court. It is well settled that where on the evidence two possibilities are available and open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. 30. We then pass on to another important point, which seems to have being completely missed by the Trial Court. It is well settled that where on the evidence two possibilities are available and open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Arunachal Pradesh reported in the Apex Court made the following observations: Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. 31. For all the aforesaid reasons, while we are not in a position to say that the version of the accused appellant is necessarily correct, it certainly throws a reasonable doubt upon the entire prosecution version, when it is coupled with other circumstances discussed above. In view of such a situation, we are of the opinion that the benefit of doubt has to be given to the appellant. 32. The appeal is allowed. The impugned judgment of conviction and sentence dated 4-8-2006 passed by the learned Additional Sessions Judge, North Tripura, Kailashahar in Case No. Sessions Trial 18 (NT/K) of 2006 is hereby set aside and quashed. The accused appellant is set at liberty forthwith, if not wanted in connection with any other case. Let the LCR be transmitted to the Court below along with the copy of the judgment. Registry shall prepare the release order of the accused appellant for his release forthwith in connection with this case.