Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 520 (CAL)

Md. Mustafa Sheikh v. STATE OF WEST BENGAL

2011-04-08

G.C.GUPTA, RAGHUNATH RAY

body2011
JUDGMENT Raghunath Ray, J. 1. FACTUAL Matrix : On 1st June, 2001 at about 9.30 P.M., the appellant, Md. Mustafa Sk. of Notunpara, Ambagan (Hariharpur), P.S. Baruipur allegedly strangulated his spouse Parveen Bibi to death in his tenanted room and managed to escape therefrom. In the intervening night of 1/2.6.2001 at about 2.00 A.M., Muzibur Rahaman, P.W.1, the landlord informed the Officer-in-charge, Baruipur P.S. about the commission of the said cognizable offence. On the basis of the said written complaint (Ext. 1) Baruipur P.S. Case No. 91/2001 dated 2.6.2001 under Section 302, IPC was registered for investigation. The appellant Mustafa, however, had been to Beniapukur P.S. and stated before Sri Subhas Ch. Sarkar, the S.I. of Police, P.W.6 that he had caused death of his wife, by throttling at Ambagan, Baruipur. On the basis of his statement he was detained there by the said Police Officer. On verification of his statement, Abhijit Mukherjee, the S.I. of Baruipur P.S., P.W.4 was informed about the same. The appellant was subsequently arrested by P.W.4 and was taken to Baruipur P.S. 2. THE inquest on the dead body of the victim was held by Sri S. C. Sinha, Executive Magistrate, Baruipur as per requisition submitted by the I.O. before the S.D.O. THE postmortem examination of the victim was conducted by Dr. P.G. Bhattacharjee, P.W.5. In course of investigation, Abhijit Mukherjee, the I.O., P.W.4 examined several witnesses including Muzibur Rahaman, P.W.1, the informant, and his wife, the landlady, Yasmin Bibi, P.W.2 in terms of Section 161, CrPC. He also collected the P.M. report. On his transfer, Krishnaprasad Bose, the I.O., P.W.9 conducted further investigation and on completion of such investigation, he submitted charge sheet under Section 302, IPC against the appellant, Mustafa. On consideration of the relevant Police papers and other connected documents and materials on record, the then learned S.D.J.M., Alipur, 24 Pgns, (South) was of the opinion that since the offence under Section 302, IPC was established prima facie, the case is exclusively triable by the learned Court of Sessions. Accordingly, the case was committed to the Court of learned Sessions Judge, 24 Pgns. (South) in terms of Section 209, CrPC by the order dated 8.10.2001. 3. THE Sessions Case No. 99(10)/2001 arising out of BGR 1774/ 2001 was transferred to the Fast Track Court - III of the learned Additional Sessions Judge, Alipur, 24 Pgns. (South). Accordingly, the case was committed to the Court of learned Sessions Judge, 24 Pgns. (South) in terms of Section 209, CrPC by the order dated 8.10.2001. 3. THE Sessions Case No. 99(10)/2001 arising out of BGR 1774/ 2001 was transferred to the Fast Track Court - III of the learned Additional Sessions Judge, Alipur, 24 Pgns. (South). THE case was subsequently fixed for consideration of framing of charge on 1.2.2002. On verbal submission of the appellant that he had no means to engage an Advocate to defend him, the learned trial Court appointed Mr. Subrata Adhikari, learned Counsel to defend him. After taking the relevant materials on record into consideration the learned Court below was satisfied prima facie that there were materials to frame charge. Accordingly, the appellant was charged under Section 302, IPC. THE contents of charge were read over and explained to him to which he pleaded not guilty and claimed to be tried. THE appellant was asked to answer the following charge : That you, on or about the 21.30 hrs. on 1.6.2001 at Natun para, Ambagan, Hariharpur, within the jurisdiction of Baruipur P.S, to wit commit murder intentionally, knowingly and willfully committed murder, by manual strangulation in the neck, of your wife Parvin Bibi and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within the Cognizance of this Court." THE appellant was thus put on trial. Trial : 4. DURING trial altogether seven witnesses were examined in support of the prosecution case. The appellant, Mustafa Sk. was examined under Section 313, CrPC. The defence case as is gathered from the trend of cross- examination and accused's examination under Section 313, CrPC is that of innocence, denial and false implication. Upon consideration of ocular and documentary evidence (Exts.1and2) together with other connected materials and relevant circumstances on record, the learned trial Court came to the conclusion that the appellant had caused the death of his wife by manual strangulation. It was, therefore, held by "him that the appellant committed the offence as alleged and the charge under Section 302, IPC against the accused stood proved beyond all reasonable doubts. Accordingly, the appellant was found guilty of the offence punishable under Section 302, IPC and was convicted thereof vide judgment and order dated 28.5.2002. It was, therefore, held by "him that the appellant committed the offence as alleged and the charge under Section 302, IPC against the accused stood proved beyond all reasonable doubts. Accordingly, the appellant was found guilty of the offence punishable under Section 302, IPC and was convicted thereof vide judgment and order dated 28.5.2002. The convict-appellant was heard on the question of sentence and was, thereafter, sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2000/- in default to suffer R.I. for one year for commission of an offence punishable under Section 302, IPC as per order dated 29.5.2002. Appeal : 5. FEELING aggrieved the convict-appellant preferred the instant appeal challenging the legality and/or validity of the judgment and order impugned. Mr. Bhattacharjee, the learned Advocate appearing in support of the Appeal assails the judgment and order impugned mainly on the ground that the learned Court below has committed a serious illegality by placing reliance upon the so called confession of guilt by the appellant before the Police Officer. Further, the conviction of the appellant is not based upon cogently strong legal evidence. Therefore, in the absence of reliable corroborative evidence the conviction of the appellant is liable to be set aside. According to him, since there is not a single eye-witness, the learned Additional Sessions Judge ought to have considered legal proposition that the chain in a case based upon circumstantial evidence should be cohesive and coherent and chain of events fastened together would unerringly point to the guilt of the accused only and there should not be any missing link in such cohesive chain of circumstances. In such a situation, it is submitted by him that the order of conviction and sentence is illegal, arbitrary and unsustainable in law. 6. SUCH submission is, however, disputed by Mr. Mahato, the learned Advocate for the State. It is forcefully submitted by him that the evidence on record clearly indicates that the accused and the victim were found staying together in a rented room at the material point of time and there is nothing on record to indicate that there was any access of any stranger in the said tenanted room during the crucial hours. It is forcefully submitted by him that the evidence on record clearly indicates that the accused and the victim were found staying together in a rented room at the material point of time and there is nothing on record to indicate that there was any access of any stranger in the said tenanted room during the crucial hours. Even if the confession made by the accused before the Police immediately after the incident is excluded from the Court's consideration, there are other unimpeachable circumstances if put together would unmistakably point to the guilt of the accused only. It is, further, submitted by him that the convict-appellant owed an explanation about the death of his wife by strangulation since the victim was seen in their tenanted room together for the last time immediately prior to the tragic incident at that fateful night. In the absence of any plausible explanation from the side of the appellant about his wife's death by strangulation, an adverse presumption is to be drawn against the convict- appellant. More so, whenever the prosecution has discharged its initial burden of proving the prosecution case indicating culpability of the convict- appellant. Since the appellant was found staying with his wife in the rented room in question at the fateful moment when tragic end came to her through strangulation, it can be said that it was within the special knowledge of the convict-appellant as to how the incident occurred. Therefore, he has a liability to explain the circumstances leading to his wife's tragic death. According to him, the impugned judgment and order of conviction does not suffer from any legal infirmity and as such the said impugned judgment and order is legally sustainable and the same does not deserve any interference from this Appellate Court. Analysis : Before adverting to the rival contention of the parties, it would be apposite to evaluate both ocular and documentary evidence on record in its proper perspective for arriving at a just decision in this case. The informant landlord, Sk. Muzibur Rahaman, P.W.1 deposes that the appellant, Mustafa was inducted as a tenant in respect of one room which was closed for last 5 months even though there were as many as 5 tenants in his house. He has proved the FIR (Ext. 1). It is, however, stated by him during cross- examination that he had no knowledge about the incident. He has proved the FIR (Ext. 1). It is, however, stated by him during cross- examination that he had no knowledge about the incident. It is also available from his testimony that the Police Officer visited his house in connection with the incident of murder and the FIR (Ext. 1) was lodged by him. 7. HIS wife, the landlady, Yasmin Bibi, P.W.2 testifies that there were seven rooms in their house and six rooms were let out to tenants. The appellant, Mustafa was also one of their tenants. She further deposes that the appellant, Mustafa with his wife came to their house for residing as a tenant at about 12.00 P.M. They stayed only one night and on the next night the Police came and, thereafter, she could learn about the incident. When she along with the Police had been to the room, they found the wife of Mustafa lying dead. It transpires from her cross-examination that she had also no knowledge as to how the incident happened. The Home guard, Mr. Balai Adhikari bearing No. 1673 who took the dead body of the victim to Mominpur Morgue for postmortem was examined as P.W.3. He also identified the dead body of the deceased to Dr. Bhattacharjee who conducted the postmortem examination. 8. ABHIJIT Mukherjee, the I.O., P.W.4 was entrusted by the then O.C., with the investigation of Baruipur P.S. Case No. 91 dated 2.6.2001. In course of investigation he visited the P.O. and recorded the statements of the witness. He fcae also prepared the sketch of the P.O. and further held the inquest on the dead body of Esrat Parveen which was despatched to the Thana from P.O. through Home guard, Balai Adhikari, P.W.3. It is, further, available from his evidence that on receiving telephonic message from Baruipur P.S. about the surrender of the accused, he had been to Beniapukur Thana and arrested the appellant, Mustafa. After returning from Thana, he also submitted his requisition to the S.D.O., Baruipur for requisitioning the service of the Executive Magistrate for holding the inquest on the dead body of the victim. Accordingly, Sri S. C. Sinha, the Executive Magistrate, Baruipur conducted the inquest in the presence of the witnesses. He also arranged for postmortem examination on the dead body by deputing the Home guard, Balai Adhikari, P.W.3 who carried the dead body in question to the Morgue. On 2.6.2001, Dr. Accordingly, Sri S. C. Sinha, the Executive Magistrate, Baruipur conducted the inquest in the presence of the witnesses. He also arranged for postmortem examination on the dead body by deputing the Home guard, Balai Adhikari, P.W.3 who carried the dead body in question to the Morgue. On 2.6.2001, Dr. P. G. Bhattacharjee, the then Medical Officer posted as A.C.M.O.H., 24 Pgns. (South) held the postmortem of Esrat Parveen, brought and identified by Home guard, Balai Adhikari, P.W.3 in connection with Baruipur P.S. Case No. 91/2001 dated 2.6.2001. On examination he found the following injuries : "01. Cresentic Nail mark abrasions on the both sides of neck which measuring about 11/2 x 1 /6" on the right side, 2 in No. and on the left side three in number. 02. On dissection, the subcutaneous tissues underneath is bruised and full of fluid and clotted blood. On further dissection the left cornu of the hyoid bone is fractured (sublaxation) with the infiltration of fluid and clotted blood in and around. In my opinion, the death was due to the effect of the manual strangulation as stated antemortem and homicidal in nature. This is the P.M. report prepared and signed by me. It is marked Ext. 2." During cross-examination it is clarified by him that it is not possible to have injuries recorded in his P.M. Examination report, if the subject falls from height. 9. SRI Subhas Ch. Sarkar, P.W. 6, is the Sub-inspector of Police attached to Beniapukur P.S. at the material point of time, before whom the appellant allegedly confessed his guilt immediately after the incident. P.W.6 deposes that one person came before him in the Police Station and stated that he had caused death of his wife by throttling at Baruipur, Ambagan. SRI Sarkar, P.W. 6 immediately detained him and on verification of his statement the matter was reported to Abhijit Mukherjee of Baruipur P.S., P.W.4 who in turn came to their P.S. and arrested the appellant. He took him to Baruipur P.S. The cross-examination of this important witness was, however, declined from the side of the defence. 10. SRI Krishnaprasad Biswas, P.W.7 is the second I.O. who took charge of the relevant Case Diary from earlier I.O., P.W.4 who left the P.S. on his transfer. It is available from his testimony that the major part of the investigation had been carried out by SRI Mukherjee. 10. SRI Krishnaprasad Biswas, P.W.7 is the second I.O. who took charge of the relevant Case Diary from earlier I.O., P.W.4 who left the P.S. on his transfer. It is available from his testimony that the major part of the investigation had been carried out by SRI Mukherjee. On perusal of the case diary, he simply submitted the charge sheet under Section 302, IPC against the appellant in consultation with his superior Officers. It is an admitted position that the alleged incident of murder was not witnessed by anyone. Therefore, in the absence of any eye-witness the entire case of the prosecution rests on circumstantial evidence, It is well settled that in such type of cases the evidence and materials on record should connect the accused with the crime and it should point to the conclusion that it was the accused and accused only who was the culprit and the evidence adduced was incompatible with his innocence. Therefore, the only reasonable inference from the proved facts should be that the accused committed the murder of the wife and in such circumstances, conviction can only be based on such circumstantial evidence. 11. THERE was direct evidence on the point that the appellant was inducted as a tenant and entered into the tenanted room at 12.00 P.M. on a particular day followed by the date of incident. The facts so established by PWs 1, 2, 4 and 6 showed that the accused had an opportunity to do away with the deceased and the conduct of the accused in surrendering to the Beniapukur P.S. immediately after the occurrence is also a telling circumstance. Such conduct of the accused is far from establishing his innocence. In fact, while deciding the question of sufficiency of evidence in the present case the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and the combined effect of these facts taken together is conclusive in pointing the guilt of the accused, even though, a particular fact relied on by the prosecution may not be decisive in itself. 12. IT is, therefore, an established fact that the accused alone was with his wife in the tenanted room when she was murdered by strangulation. 12. IT is, therefore, an established fact that the accused alone was with his wife in the tenanted room when she was murdered by strangulation. Another incriminating fact is that the tenancy of the room was taken by him just on the previous day of the date of incident. Such homicidal death of the deceased wife while in accused's custody remains unexplained. As a matter of fact, these circumstances serve as cohesive links in the chain of circumstantial evidence which tend to rule out the innocence of the accused. The circumstances that the accused surrendered before the Beniapukur P.S. almost immediately after the gruesome murder of his wife and his detention in the said P.S. by itself are also closely linked in the chain of circumstantial evidence. All these circumstances linked together form a chain against the appellant and it forms a reasonable basis for a conclusion that he had direct involvement in strangling his wife. Needless to say that this is a case of murder by throttling and perpetration of such ruthless crime is by none else but allegedly the husband of the unfortunate victim. It is already indicated earlier that circumstantial evidence on record clearly establishes that the accused and the deceased stayed together in the tenanted premises and the appellant was all along with the deceased during fateful hours of that dreadful night and he also surrendered in the local P.S. immediately after the incident and on his surrender he was apprehended by the Police and was detained in the P.S. Such being the factual position, the possibility of the presence of any eyewitness can safely be eliminated but the presence of deceased and the appellant in the rented premises where the dead body of the victim was found is not in dispute. None of the witnesses leading corroborative evidence to that effect has ever been challenged by the defence during their cross- examination. It has not even been suggested remotely to any of the witnesses during their cross-examination that the appellant was not with the victim at the fateful moment when the victim was strangulated in the tenanted room. Such plea has also not been set up by the appellant during his examination under Section 313, CrPC. If these circumstances are not rebutted, they sufficiently incriminate the accused and especially in the absence of any explanation, they are sufficient to establish his guilt. 13. Such plea has also not been set up by the appellant during his examination under Section 313, CrPC. If these circumstances are not rebutted, they sufficiently incriminate the accused and especially in the absence of any explanation, they are sufficient to establish his guilt. 13. IT is also highly significant to note that in this murder case based on circumstantial evidence Prosecution witnesses' (PWs 1 and 2) specific testimony on the material particulars of appellant husband's staying together with the deceased wife in the tenanted premises was not put to challenge during cross-examination. Further testimony of the landlady, P.W.2 to the effect that both the appellant and the deceased were last seen together in their tenanted room also remains unassailed These are some of the telling circumstances which would go long way to prove the prosecution case. Applicability of Section 106 of Indian Evidence Act : 14. IT is a cardinal principle of criminal law that the burden lies on the prosecution to establish its case against the accused beyond all reasonable doubts and the prosecution cannot get advantage from the accused's failure to establish his case. A person has, no doubt, "a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though the standard is a higher standard. However, there is no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case" (vide AIR 1988 SC 2154 : 1989 Cr LJ 218 :1989 C Cr LR (SC) 63, (State of U.P. v. Krishnagopal). Therefore, positive facts must always be proved by the prosecution. But the same rule cannot be applied to negative facts as regards which the rule about the burden of proof will be governed by Section 106 of the Indian Evidence Act provided of course other conditions for application are satisfied. In the present case, the appellant having been seen last with the deceased the burden was upon him to prove what happened thereafter since those facts were within his special knowledge. If the appellant fails to do so, it is to be held that he failed to discharge the burden cast upon him by Section 106 of the Indian Evidence Act vide AIR 2007 SC 144 (State of Rajasthan v. Kashiram). If the appellant fails to do so, it is to be held that he failed to discharge the burden cast upon him by Section 106 of the Indian Evidence Act vide AIR 2007 SC 144 (State of Rajasthan v. Kashiram). In this context, it would be appropriate and relevant to reproduce the observations of the Hon'ble Apex Court from an oft-quoted judgment reported in AIR 1956 SC 404 (Shambhu Nath Mehra v. The State of AJmer) as under : "(11). This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge............" 15. IT is, therefore, settled position of law that the burden of proof is on the prosecution and it never shifts and the use of Section 106 of the Evidence Act is to be restricted to 'a very exceptional class of cases'. In order to adjudge the nature of 'a very exceptional class of cases' it would be appropriate and convenient to refer to paragraph 14 of a ruling reported in (2006)10 SCC 681 (Trimukh Maruti Kirkan v. State of Maharashtra) wherein the Hon'ble Apex Court made the following observations which are required to be kept in mind while dealing with a case where the heinous offence was committed inside the privacy of a tenanted room : "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence as noticed above is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.........The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading having regard to the acts and "circumstances of the case............." 16. THEIR Lordships further proceeded to observe in Paragraph 15 of the said decision as under : "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." Similar principles have been reiterated by the Apex Court in a subsequent judgment reported in 2008 Cr LJ 1039 SC (State of Rajasthan v. Jaggu Ram). Keeping in view the principles of law as enunciated in the judicial pronouncements of the Apex Court, we have dissected the evidence and circumstances on record with utmost circumspection. We find that the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the murder of the victim. Therefore, by invoking Section 106 of the Indian Evidence Act, we are to hold that the convict-appellant owes an explanation on the strength of his special knowledge and such explanation might lead the Court to draw an appropriate inference. Accused's obligation during examination under Section 313. CrPC : 17. Therefore, by invoking Section 106 of the Indian Evidence Act, we are to hold that the convict-appellant owes an explanation on the strength of his special knowledge and such explanation might lead the Court to draw an appropriate inference. Accused's obligation during examination under Section 313. CrPC : 17. IN the context of accused's failure to explain the circumstances leading to his wife's strangulation, it is worth mentioning that in response to the question No. 4 put to him during his examination under Section 313, CrPC, the accused answered in the affirmative stating that he along with his deceased wife stayed together in the rented room at the fateful night but in the next breath he pleaded ignorance as to how the death was caused to his wife. The relevant question put to the accused by the learned Trial Judge and his answer thereto is reproduced accordingly as under : "Q. (4). It has been transpired from the evidence given by P. W.2 that you started living in a room of their house alongwith your wife as, a tenant since 12.00 P.M. and you stayed in their house in that night. IN the following night, your wife was found dead in that room. What do you have to say regarding this Ans. Its true that I live in that house along with my wife. I don't know anything about her death." IN reply to the next question No. 5, it is simply stated by him that he had been to Beniapukur P.S. Both the query No. 5 and its corresponding reply are quoted below : "Q. (5). It has also been transpired from the evidence given by P.W.4 and 6 that you surrendered at Beniapukur P.S. What do you say about this'? Ans. Yes. I went to Beniapukur P. S." 18. IN this connection reliance can be placed upon a decision of the Apex Court reported in (1992)3 SCC 106 (supra) wherein it is held that circumstances clearly establishing homicidal death having occurred while the deceased was in the custody of the appellant and his family members, the appellant was obliged to give a plausible explanation for the cause of the death of his wife in his statement under Section 313, CrPC. IN the instant case, it is needless to mention that even though the appellant admitted in his examination under Section 313, CrPC that he along with his deceased wife stayed together in the rented premises at the fateful night, he refused to explain the circumstances leading to his wife's homicidal death. As a matter of fact, instead of offering a plausible explanation for the cause of such homicidal death of his wife he has sought,to prevaricate the relevant question by furnishing 'a reply evasively to the same. We have, therefore, no hesitation to opine that the accused failed to discharge his obligation during examination under Section 313 CrPC, even though it is established that the victim wife was in his custody when such homicidal death occurred. Motive : There is no doubt that in a criminal trial motive plays a very significant role and also assumes importance but in its absence it cannot be said that the proved circumstances would be of no consequence. Rather, conviction of an accused can safely be based on such proved circumstances even in the absence of motive if the chain of circumstances is completed. Therefore, in a case which is based on circumstantial evidence the prosecution is not bound to prove motive of any offence inasmuch as the motive is known only to the perpetrator of the crime and may not be known to others. It does not, therefore, follow that if motive is not proved, the impeccable corroborative evidence coupled with a chain of cogent and consistent circumstances would become automatically unreliable or doubtful. So, in such a fact situation, proof of motive is not essential. 19. IN this context, reference can be made to a ruling of the Apex Court reported in (1992)3 SCC 106 (Ganeshlal v. State of Maharashtra). It is held therein that even in the case of circumstantial evidence, absence of motive which may be one of the strong link to complete the chain would not necessarily become fatal to the prosecution where other circumstances are such as to complete the chain connecting the accused with the crime. As already discussed earlier in the preceding paragraphs there are sufficiently strong and clinching evidence and circumstances on record to complete the chain and connect the accused with the commission of murder of his wife by strangulation. As already discussed earlier in the preceding paragraphs there are sufficiently strong and clinching evidence and circumstances on record to complete the chain and connect the accused with the commission of murder of his wife by strangulation. Such being the position of law,, absence of motive is an irrelevant consideration on the face of proven circumstances of incriminating nature against the appellant. Emerging circumstances : 20. AGAINST such factual and circumstantial scenario, we have meticulously dissected the entire tangible evidence and cogent circumstances on record in its proper perspective and in our considered opinion the following circumstances form a chain of circumstances which can safely be relied upon : i) The appellant, Mustafa came to the house of the informant, P.W.1 with his wife, the victim for residing as a tenant at about 12.00 P.M. on the day preceding the date of incident; ii) Both spouses stayed together in a tenanted room till the next night when Israt Parveen, the wife of Mustafa was found lying dead; iii) The Police entered into the tenanted room in question along with the landlady, Yasmin Bibi, P.W.2 and found Parveen lying dead there; iv) The conduct of the appellant in surrendering to the Beniapukur Police Station is an important circumstance of considerable significance; v) Such spontaneous surrender in the same night also prompted the Police Officer, P.W.6 to verify the report of death of his wife; vi) After proper verification the appellant was detained in the Beniapukur P,S. and the Baruipur P.S. was informed about such detention since the P.O. fell within the territorial jurisdiction of Baruipur P.S.; vii) On arrival of Mr. Abhijit Mukherjee, P.W.4, the I.O. of the case, the appellant was handed over to him and he was subsequently arrested by P.W.4; viii) Tenancy in respect of the room at Notunpara, Ambagan, Hariharpur, Baruipur in favour of the appellant has been established through the corroborative testimony of the landlady, P.W.2 and her husband P.W.1; ix) The appellant himself has admitted during his examination under Section 313, CrPC that he stayed in the tenanted room along with his wife, the victim at the material point of time; x) It is also stated by him during his examination under Section 313, CrPC that he had been to Beniapukur P.S. in connection with the death of his wife; xi) The appellant's contention during his examination under Section 313, CrPC that as he had no knowledge that the tenanted room in question was situate within the jurisdiction of Baruipur P.S., he had been to Beniapukur P.S.; xii) Evidence on record indicates that his spontaneous surrender to the duty Officer of Beniapukur P.S. was followed by his arrest by an Officer of Baruipur P.S., P.W.4. xiii) Appellant's utter failure to discharge the burden cast upon him under Section 106 of the Evidence Act. xiv) Further failure to discharge his obligation during examination under Section 313, CrPC by offering a plausible explanation for the cause of death of his wife who was in his custody, in fact, forms an additional link to the chain of circumstantial evidence. Dur view : In the present case, the appellant's spontaneous surrender to the Beniapukur P.S. immediately after the incident ted to the recovery of the dead body of the victim from the P.O., i.e., the tenanted room wherein the spouse stayed together for the last time. Such recovery is a relevant fact and forms the part of same transaction and is admissible as res gestae under Section 6 of the Evidence Act. That apart, the conduct of the appellant soon after the incident of death of his wife undoubtedly plays an important role in the determination of his guilt and is a corroborative piece of evidence. As a matter of fact, the evidence of conduct of the appellant in going to Beniapukur P.S. out of his own volition immediately afterthe occurrence in giving report of the occurrence of death of his wife and in surrendering himself to the P.S. is admissible under Section 8 of the Evidence Act. 21. As a matter of fact, the evidence of conduct of the appellant in going to Beniapukur P.S. out of his own volition immediately afterthe occurrence in giving report of the occurrence of death of his wife and in surrendering himself to the P.S. is admissible under Section 8 of the Evidence Act. 21. AS already indicated earlier it is clearly established from evidence and circumstances on record that the victim wife was in the custody of the husband-appellant at the material point of time. In such a fact situation the appellant is to explain the circumstances leading to his wife's death by strangulation during his examination under Section 313, CrPC. It can, however, be safely concluded on a close scrutiny of materials on record including examination sheet under Section 313, CrPC that the appellant did not care to offer any explanation whatsoever as to how his wife died even though both of them stayed together at the fateful moment in their rented room which was let out to them by their landlady, P.W.2. Since the appellant is accused of committing murder of his wife, the fact that the appellant and the deceased were last seen alive in the company of each other and the appellant's failure to sufficiently account for the murder of the deceased is considered as a circumstance of incriminating nature. AS a matter of fact, the appellant's failure to explain the circumstances leading to his wife's death by strangulation, therefore, is undoubtedly a circumstance providing additional link to the chain of circumstances already enumerated in preceding paragraphs. He has also thus failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act even though the prosecution has discharged his initial burden of proving the case by adducing evidence through cogent, consistent and convincing circumstances on record. 22. He has also thus failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act even though the prosecution has discharged his initial burden of proving the case by adducing evidence through cogent, consistent and convincing circumstances on record. 22. AFTER making a critical analysis of evidence and circumstances on record, it has rightly been observed by the learned trial Court in the penultimate paragraph of the Judgment under appeal as follows : "...........Since there was none else in the room wherein the accused and his wife stayed and since the accused knew about the death of his wife as he admittedly reported the death to the P.S. and since the accused has failed to explain the case of death of his wife, he cannot escape from the liability of the proximate cause of death of his wife. It has come out that the death of the victim Esrat Parveen, wife of the accused, occurred by manual strangulation anti-mortem and homicidal in nature. The circumstances of the case as discussed lead to the only conclusion that the accused had caused the death of his wife by manual strangulation and that thereafter he went to Beniapukur P.S." While judging the guilt or innocence of the appellant in this murder case based on circumstantial evidence, we have thus very assiduously taken the totality of various incriminatory circumstances together with its cumulative effect into consideration. Significantly enough, there is nothing on record even in the form of defence suggestion that there was any access to a stranger during the short stay of the appellant with his wife Esrat Parveen in the rented room at Ambagan. On the contrary, it is established and firmly established from the circumstantial evidence on record that accused Mustafa lived with his wife in the said rented room at Ambagan. It is also evident that he surrendered to the Police Officer, P.W.6 of Beniapukur P.S. immediately after the occurrence and even prior to the lodgement of the FIR (Ext.1) by the landlord, P.W.1. The P.M. report (Ext.2) evinces that the cause of death was manual strangulation, ante- mortem and homicidal in nature. Cresentic nail marks and other injuries were also detected as per the P.M. report. The P.M. doctor clearly opined that such injuries cannot be sustained by falling from height. The P.M. report (Ext.2) evinces that the cause of death was manual strangulation, ante- mortem and homicidal in nature. Cresentic nail marks and other injuries were also detected as per the P.M. report. The P.M. doctor clearly opined that such injuries cannot be sustained by falling from height. As already indicated earlier, no explanation is also forthcoming as to how the victim was strangulated while she was in the custody of the appellant. 23. TAKING all these facts and circumstances together into account we are to opine that the same are consistent only with the hypothesis of guilt of the appellant. We, therefore, concur with the ultimate finding of the learned trial Court that the appellant committed the offence of murder and the charge under Section 302, IPC against him stood proved beyond reasonable doubt. Decision : 24. VIEWED in the light of the foregoing discussion, we feel convinced to hold that the afore-narrated circumstances leading to the conclusion of guilt are conclusive in nature and have fully been proved. Further, the facts so established are inconsistent with innocence of the appellant and it excludes the possibility of guilt of any person other than the appellant. We are, therefore, unable to disturb the findings of the learned trial Court. The order of conviction and sentence impugned stands affirmed accordingly. In the result the appeal is dismissed. Direction : The appellant who is on bail is directed to surrender before the learned trial Court within two weeks in default whereof the bail bond of the appellant shall stand cancelled and he is to be taken into custody forthwith to serve out the remaining portion of the sentence. Learned Additional Sessions Judge, Fast Track Court -, III, Alipore, 24 Pgns. South is directed to ensure compliance.