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2009 DIGILAW 54 (GAU)

Bhabel Chandra Sarkar v. State of Assam

2009-01-23

AMITAVA ROY, C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 18.6.2003 passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No. 42(J)/1998 convicting the accused Appellant under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for two months. 2. The case of the prosecution, in brief, is that on 5.8.1995 at about 2.15 p.m. police received an FIR (Ext. 3) from one Shri Ratan Sarkar, by which the police was informed that the informant's niece, Smti Sishu Mallika, wife of Shri Bhebol Sarkar of Bharlkandi Beel was assaulted and killed by her said husband following a domestic quarrel between them and that the deceased's husband fled the place of occurrence after hanging the dead body of the deceased inside the house. On receipt of the said FIR, Jogighopa P.S. Case No. 47/95 under Section 302 of the Indian Penal Code was registered. The PW 10 i.e. the Investigating Officer visited the place of occurrence and launched investigation into the case. On his arrival at the place of occurrence, he found the dead body of the deceased lying on the floor of the house with one end of a rope being tied to her neck and the other part of the rope (torn) tied to the ceiling of the house. Upon identification of the dead body by the informant, PW 10 prepared inquest report (Ext. 2) in presence of witnesses and seized the rope (made of jute) and a handle of spade and a bamboo lathi vide seizure list Ext. No. 1. He prepared a sketch map (Ext. 5) and forwarded the dead body for post mortem examination. The husband of the deceased was arrested from the bus stop and he was forwarded to the Magistrate for recording his confessional statement. The witnesses, Smti. Padda Bala Mandal (PW-3) and Smti. Moromi Bala Mondal (PW 2) were sent to the Magistrate for recording their statement. During the course of investigation, police recorded the statement of the witnesses and collected the Post-Mortem report (Ext. No. 9), which revealed bleeding injury from the left ear, temporal membrane ruptured and hematoma in the temporoparietal region. The cause of death was shock and haemorrhage due to hematoma on brain. 3. During the course of investigation, police recorded the statement of the witnesses and collected the Post-Mortem report (Ext. No. 9), which revealed bleeding injury from the left ear, temporal membrane ruptured and hematoma in the temporoparietal region. The cause of death was shock and haemorrhage due to hematoma on brain. 3. The police also collected the statements made under Section 164 of the Criminal Procedure Code by Smti Padda Bala Mondal and Smti Morami Bala Mondal i.e. Ext. Nos. 6 and 7 respectively. At the conclusion of the investigation, the accused was charge-sheeted and sent for trial for committing the offence under Section 302 of the Indian Penal Code. The learned Sub-Divisional Judicial Magistrate committed the case to the Court of Sessions for trial. 4. In the Court of Sessions, the charge under Section 302 of the IPC was framed to which the accused pleaded not guilty and claimed to be tried. 5. In the course of trial, as many as 12 witnesses were examined on behalf of the prosecution. The accused was examined under Section 313 of the Criminal Procedure Code and his plea was a denial one. He further pleaded that the mental condition of his deceased wife was not normal, that due to financial hardship, quarrel used to take place between them and that some times she expressed her intention to commit suicide. It was further stated by the accused in his statement made under Section 313 of the Criminal Procedure Code, that on the date of occurrence, a quarrel also took place between them and that after his departure from their house, his wife committed suicide by hanging herself. He also retracted his earlier confession that he had assaulted his wife following a quarrel on the date of occurrence. At the conclusion of the trial, the learned Sessions Judge by judgment and order dated 18.6.2003 convicted the accused under Section 302 of the Indian Penal Code and sentenced him as aforesaid. Being aggrieved, the accused filed the instant appeal. 6. A brief resume of the evidence adduced by the prosecution may be usefully set out at this stage. PW 1, Shri Ratan Sarkar was the first informant. In his deposition he stated that the deceased was his niece and that the accused used to assault her after the marriage. Being aggrieved, the accused filed the instant appeal. 6. A brief resume of the evidence adduced by the prosecution may be usefully set out at this stage. PW 1, Shri Ratan Sarkar was the first informant. In his deposition he stated that the deceased was his niece and that the accused used to assault her after the marriage. He further stated that on the date of occurrence at about 11 a.m. his mother had informed him that the accused had killed his niece and on being so informed around 12 noon he visited the marital house of his niece, wherein he found the dead body of his niece. He found that a rope was hanging from the ceiling of the house and one part of the rope was tied to the neck of the deceased. He stated that police seized the rope, a bamboo lathi similar to a handle of spade. He exhibited the rope, a handle of spaded and a bamboo lathi as material Ext. Nos. 1, 2 and 3 respectively. He further stated that 'he presumed' that the deceased was murdered. In his cross-examination he stated that he suspected that his niece was killed and that the dead body was hanged from the ceiling of the house. The evidence of this witness does not reveal any thing to indicate that the accused had killed his wife and hanged the dead body in the ceiling. He suspected that the deceased was killed by the accused. But, in the eye of law, suspicion can't be the basis for holding a person guilty of an offence. 7. PW 2, Smti. Moromi Bala Mondal stated that she was a neighbour of the accused. She stated that on the date of occurrence, while she was sweeping the floor of her house, she could know that the accused and the deceased were involved in a quarrel. In his cross-examination she stated that she saw the accused slapping his wife. Even after hearing hue and cry of the said quarrel, she did come out of her house and at about 7 a.m. the accused left the house. She stated that when she was cooking rice, the nephew of the accused informed her that the deceased committed suicide by hanging. She further stated that from her residence itself she could see the dead body of the deceased lying on the floor. She stated that when she was cooking rice, the nephew of the accused informed her that the deceased committed suicide by hanging. She further stated that from her residence itself she could see the dead body of the deceased lying on the floor. This witness was examined by the prosecution after declaring her hostile and she denied the suggestion that she saw the accused assaulting his wife with a bamboo lathi and that when she tried to intervene, she was also chased away by the accused. Though this witness was cross-examined by the prosecution, nothing could be elicited to believe that she had seen the accused assaulting the deceased. Of course, her evidence reveals that a quarrel had taken place between the accused and the deceased and the deceased had left his house after the said quarrel. It is also found that the nephew of the deceased, at about 11 a.m. had informed this witness that the deceased committed suicide by hanging. The said nephew, who was a vital witness in this case was not examined by the prosecution. Non examination of such a material witness coupled with the information stated to be given by such a witness raises doubt about the prosecution story that the accused had killed the deceased. 8. PW 3, Smti Padda Bala Mondal, in her evidence, stated that in the morning of the date of occurrence a quarrel followed by a "marpit" had taken place between the deceased and the accused. She stated that the accused had assaulted his wife. After the said incident, according to this witness, the accused had his meal and left towards the station with a piece of paper in his hand and she also (PW 3) went out for cutting grass. After her return, a little girl had informed her that the deceased was lying dead. On being so informed, she rushed to the house of the deceased and found the dead body lying, on the floor. She also found a piece of torn rope therein. She has exhibited the said rope, which was an old one, as M. Ext. No. 1. In her cross examination, she admitted that before the Magistrate she had stated that her brother-in-law i.e. the accused had left his house for Kabaitary after assaulting the deceased following a quarrel. She also found a piece of torn rope therein. She has exhibited the said rope, which was an old one, as M. Ext. No. 1. In her cross examination, she admitted that before the Magistrate she had stated that her brother-in-law i.e. the accused had left his house for Kabaitary after assaulting the deceased following a quarrel. In her evidence on oath, this witness further stated that after the departure of the accused, his wife was found in a jolly mood. She has exhibited the rope, the handle of the spade and a bamboo lathi as M. Ext. Nos. 1, 2 and 3 respectively. From the evidence of this witness it is clearly found that the accused had assaulted his wife and he left his house leaving his wife in their house and the PW 3 found the accused's wife in jolly mood. Hence, the evidence of PW 3 clearly indicates that the deceased did not sustain any fatal injury at the hands of her husband and as such he did not kill Tier. This evidence belies the prosecution version that the accused had hanged the dead body after killing his wife. 9. PW 4, Biren Biswas stated that on his arrival in the place of occurrence he found one part of the rope hanging from the ceiling and other end of the rope being' tried to the neck of the deceased. The rope was in torn condition and the dead body was lying on the floor. He was a witness to the seizure of the material Ext. Nos. 1, 2 and 3. He stated that he learnt from the villagers that both the husband and his wife got involved in a quarrel and as a result of which the occurrence took place. This witness had no personal knowledge about the offence, alleged to be committed by the accused. 10. PW 5, Md. Manser Ali stated that on seeing many villagers including the Officer-in-charge of the Police Station in the house of the accused, he went there and found the dead body of the deceased lying therein. He stated that he did not know as to whose dead body was that. This witness stated nothing against the accused. 11. PW 6, Shri Monoranjan Malo stated that he found the dead body being carried in a push cart. He also stated nothing incriminating against the accused. 12. PW 7, Mr. He stated that he did not know as to whose dead body was that. This witness stated nothing against the accused. 11. PW 6, Shri Monoranjan Malo stated that he found the dead body being carried in a push cart. He also stated nothing incriminating against the accused. 12. PW 7, Mr. Muzibur Rahman stated that he heard that the accused had killed his wife while some persons told him that she had committed suicide by hanging herself. According to this witness the dead body was lying on the floor inside the house and the police seized the rope and lathi lying therein. His evidence was hearsay evidence. The evidence of this witness is not sufficient to implicate the accused with the alleged offence. 13. PW 8, Md. Abdul Gani, who was a petition writer by profession, on being asked by Mr. Ratan Sarkar, he had written the FIR. He has exhibited the same as Ext. No. 3. 14. From the above discussion, it appears that PW Nos. 4, 5, 6, 7 and 8 had no personal knowledge about the involvement of the accused in the alleged offence. They stated nothing material against the accused person. 15. PW 9, Manabendra Das, S.I. of police stated that the investigation of this case was made by the S.I., Shri Pankaj Kalita and on being entrusted by the Officer-in-charge of the Police Station he (PW-9) had submitted charge sheet on the basis of the case diary. He has exhibited the charge sheet as Ext. No. 4. 16. PW 10, Shri Pankaj Kalita, S.I. of police stated that on 5.8.1995 on receipt of the FIR (Ext. 3) he registered the case and launched the investigation into the case. He visited the place of occurrence, prepared inquest report and sent the dead body for post-mortem examination. He stated that during his examination, he found traces of assault caused by lathi and hand on the back of the deceased. He has exhibited inquest report as Ext. No. 2. He seized, from the place of occurrence, a handle of spade, a bamboo lathi as shown by Smti Padda Bala Mandal, he also seized a jute rope as material Ext. Nos. 1, 2 and 3 respectively. 17. Shri Dhiren Ch. He has exhibited inquest report as Ext. No. 2. He seized, from the place of occurrence, a handle of spade, a bamboo lathi as shown by Smti Padda Bala Mandal, he also seized a jute rope as material Ext. Nos. 1, 2 and 3 respectively. 17. Shri Dhiren Ch. Chetia Phukan (PW 11), Civil Judge, Senior Division No. 2, Cachar, Silchar stated that on 7.8.1995 while working as Judicial Magistrate, First Class, Abhayapuri, had recorded the statement of the witnesses, namely Padda Bala Mondal and Morami Bala Mondal under Section 164of the Criminal Procedure Code and the confessional statement of the accused. He has exhibited the said statement as Ext. Nos. 6, 7 and 8 respectively. This witness was duly cross-examined on behalf of the defence and nothing was elicited to render his evidence disbelievable. 18. From Ext. 6, it appears that Smti Padda Bala Mondal (PW-3) stated that the accused had left his house after assaulting his wife and that, the deceased i.e. the wife of the accused was with her after the departure of the accused Ext. No. 7 i.e. the statement under Section 164 of the Criminal Procedure Code, made by Smti Morami Bala Mandal (PW 2), reveals nothing against the accused. The confessional statement, i.e. Ext. No. 8 reveals that the accused had assaulted his wife with a stick used for driving bulls and thereafter he had left his house. Though the accused, in his statement made, under Section 313 of the Criminal Procedure Code, denied the allegations of assaulting his wife, Ext. No. 8 i.e. the confessional statement indicates that he had voluntarily made the said statement before the Magistrate. The learned Magistrate (PW 11), who had recorded the statement clearly stated that he was convinced that the confessional statement made by the accused was voluntary and true with regard to which he gave a certificate. The Learned Magistrate was duly cross-examined on behalf of the defence and nothing was elicited to find any defect in the confessional statement recorded by PW 11. 19. The Learned Magistrate was duly cross-examined on behalf of the defence and nothing was elicited to find any defect in the confessional statement recorded by PW 11. 19. In view of the above discussion and considering the entire evidence on record, more particularly the evidence of PW-2, who saw the accused slapping the deceased, the evidence of PW-3, who stated that the accused had assaulted his wife, we find sufficient corroboration to believe that a quarrel had taken place between the deceased and her husband i.e. the accused and that the accused had assaulted her. PW-12, Dr. Jawaharlal Sarkar, who performed the post mortem examination, stated that he found the following injuries: 1. Bleeding mark in the left ear. 2. Left temporal membrane ruptured and torn. 3. Hematoma in temporoparietal region, size 6 cm × 4cm. 20. The injuries which were ante mortem in nature, fortify the evidence of PW-2 and PW-3 to hold that the accused had assaulted his wife. The Medical Officer opined that the death of the deceased was caused on account of shock and haemorrhage due to hematoma on brain as sustained by the deceased. He exhibited the post mortem report as Ext. No. 9. In his cross-examination, this witness stated that the head injury might be caused due to fall on hard substances. 21. Mr. Pranab Kumar Talukdar, learned Amicus Curiae taking us through the evidence on record argued that there was no substantive evidence against the accused to believe that he had caused the death of the deceased and that he had hanged the dead body. He further submitted that there was no cogent evidence to implicate the accused with the death of the deceased. The learned Public Prosecutor, Mr. Z. Kamar contended that the circumstantial evidence would lead to find that the accused had killed the deceased and hanged the dead body to show that the deceased had committed suicide. 22. It is well settled that where no eyewitness is available, the offence is to be established by the prosecution by a complete chain of circumstances and the only hypothesis emerging from the chain of circumstances must be that the accused had committed offence. 23. The evidence of PW No. 3, Smti Padda Bala Mondal negates the prosecution version that the death was caused by the accused. 23. The evidence of PW No. 3, Smti Padda Bala Mondal negates the prosecution version that the death was caused by the accused. She clearly stated that the accused had left his house after assaulting his wife and after the departure of the accused, the deceased was with her and she was found in a jolly mood. This evidence is fatal to the prosecution story that the accused had killed his wife. The evidence of PW 3 leads to hold that the chain of circumstances was not complete, for which the accused is entitled to the benefit of doubt. Therefore, we find no force in the contention of the learned Public Prosecutor. Of course from the evidence of PW-2, Smti Morami. Bala Mondal and PW-3, Smti Padda Bala Monal it can be safely held that the accused had assaulted his wife. Corroboration in this regard can also be drawn for the confessional statement (Ext. 8) duly recorded by the learned Magistrate (PW 11). Even in his confessional statement the accused admitted that he assaulted his wife, but there is no convincing evidence on record that the accused had caused the fatal injury i.e. hematoma in the temporoparietal region. According to the evidence of PW 12, i.e. the Medical Officer, who performed the post mortem examination the head injury might be caused due to fall on hard substance. Therefore, in the absence of any substantive evidence against the accused, it cannot be ruled out that the deceased, who was in jolly mood even after the departure of the accused might have sustained the said head injury due to fall on any hard substance. Availability of the torn rope, (one end of which was tied to the ceiling and other end to the neck of the deceased) does not rule out the possibility that the deceased, perhaps, attempted to commit suicide by hanging herself and sustained the fatal injury on the head due to fall on any hard substance due to tearing of the rope. Further the PW 2 was informed by the nephew of the deceased that the deceased had committed suicide. Hence, there is a story likelihood that the deceased had attempted to commit suicide, or committed suicide. Hence, there is reason to doubt that she might have sustained in the fatal injury due to fall in her attempt to commit suicide. 24. Further the PW 2 was informed by the nephew of the deceased that the deceased had committed suicide. Hence, there is a story likelihood that the deceased had attempted to commit suicide, or committed suicide. Hence, there is reason to doubt that she might have sustained in the fatal injury due to fall in her attempt to commit suicide. 24. It is settled position that in a criminal case the burden lies on the prosecution to prove the guilt against the accused beyond all reasonable doubt by adducing cogent and substantive evidence. From the evidence as discussed above, it can be safely held that the prosecution failed to discharge the burden and to prove that the accused had killed his wife. 25. As discussed above, in the case in hand, we do not find any such substantive and cogent evidence to believe that the accused had killed his wife. 26. In the light of the above discussions, we are inclined to hold that the conviction under Section302 of the Indian Penal Code made by the learned Sessions Judge was not based on substantive evidence. Of course, the evidence on record safely lead to prove that the accused had assaulted his wife and considering the injuries sustained thereby thus committed the offence under Section 323 of the Indian Penal Code. 27. In view of the above, the impugned judgment and order convicting the accused under Section302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and pay fine of Rs. 1,000/- in default to suffer simple imprisonment for further two months is set aside and, instead, the accused is convicted for the offence punishable under Section 323 of the Indian Penal Code. The accused Bhabel Chandra Sarkar is awarded a sentence of imprisonment for one year with a fine of Rs. 500/- in default simple imprisonment for two months. The period of imprisonment already undergone by the accused Appellant is to be treated as set off under Section 428 of the Criminal Procedure Code. 28. With the above modifications of conviction and sentence, the appeal is partly allowed. Before we part with this matter, we would like to put on record our appreciation to Sri Pranab Kumar Talukdar, the learned Amicus Curiae for rendering legal assistance in this case. We accordingly order that he is entitled to a professional fee, which is quantified at Rs. With the above modifications of conviction and sentence, the appeal is partly allowed. Before we part with this matter, we would like to put on record our appreciation to Sri Pranab Kumar Talukdar, the learned Amicus Curiae for rendering legal assistance in this case. We accordingly order that he is entitled to a professional fee, which is quantified at Rs. 3,000/- (Rupees three thousand). 29. Send down the lower Court's record immediately. Appeal allowed.