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2012 DIGILAW 998 (GAU)

Gour Acharjee v. State of Tripura

2012-08-23

SUBHASIS TALAPATRA, UTPALENDU BIKAS SAHA

body2012
JUDGMENT S. Talapatra, J. 1. This appeal by the convict-appellants under Section 374(2) CrPC is directed against the judgment of conviction and order of sentence dated 3.6.2009 and 6.6.2009 respectively passed in Sessions Trial No. 35 (WT/S) of 2008 by the learned Additional Sessions Judge, Sonamura, West Tripura. The appellant No. 1, namely, Sri Gour Acharjee, was convicted under Section 498A IPC and sentenced to suffer R.I. for a period of three years and to pay a fine of Rs. 5,000/-, in default to suffer R.I. for another six months. He was also sentenced to suffer R.I. for life and to pay a fine of Rs. 10,000/-, in default to suffer R.I. for six months under Section 302 IPC. 2. The appellant No. 2, namely, Smti. Arati Acharjee was convicted under Section 498A IPC and sentenced to suffer R.I. for a period of one year and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for one month. She was further sentenced to suffer R.I. for life and to pay a fine of Rs. 5,000/-, in default to suffer R.I. for three months under Section 302 IPC read with Section 34 thereof. 3. The appellant No. 3, namely, Shri Nitai Acharjee, was convicted under Section 498A IPC and sentenced to suffer R.I. for a period of one year and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for one month. He was further sentenced to suffer R.I. for life and to pay a fine of Rs. 5,000/-, in default to suffer R.I. for three months under Section 302 IPC read with Section 34 thereof. 4. To appreciate the challenge and its perspective, the essential facts are required to be noted in brief. 5. A complaint was filed by one Swapan Acharjee, (P.W. 7), whereby it was alleged that his daughter, namely, Soma, was married to the appellant No. 1 as per ceremonial rites and customs and after some months of their marriage, the appellants started torture on her on demand of dowry. His daughter having tormented with torture informed him of what happened and at the instance of the informant, the Village Panchayat took up the matter on several occasions and could arrive a settlement on condition that both the appellant No. 1 and the deceased would lead their domestic life 'nicely'. The said resolution was reduced in writing. His daughter having tormented with torture informed him of what happened and at the instance of the informant, the Village Panchayat took up the matter on several occasions and could arrive a settlement on condition that both the appellant No. 1 and the deceased would lead their domestic life 'nicely'. The said resolution was reduced in writing. But the relation did not take a positive turn, rather, it deteriorated day by day. The appellants continued to torture her for hard cash, and as the informant was in trouble and incapable of giving money, her daughter was assaulted and sent once again to his house. 6. As sequel thereto, another meeting was convened by the Panchayat on 27.5.2007. The appellant No. 1 took her daughter back to his house with knowledge of the Panchayat. But after three/four days, again his daughter was subjected to torture. 7. On 16.6.2007 at about 8 a.m., in the morning, the informant got information that her daughter had committed suicide by hanging. The informant also stated in the said Ejahar (Exbt. 2) that her daughter was killed in a planned way and in cold blood. 8. On the basis of the said Ejahar, Kalamchoura P.S. Case No. 22 of 2007 under Sections 498A/ 304B/ 34 IPC was registered. Investigation was taken up by the police and on completion of the investigation, the charge sheet was filed against the appellants and another accused person, namely, Bimal Acharjee, since a prima facie case was established under Sections 498A/ 304B/ 34 IPC. On culmination of the trial, Bimal Acharjee was acquitted. 9. On taking the cognizance, the said case was committed to the Court of the learned Additional Sessions Judge, West Tripura, Sonamura since the offence under Section 304B is exclusively triable by the Court of Sessions. 10. On culmination of the trial, Bimal Acharjee was acquitted. 9. On taking the cognizance, the said case was committed to the Court of the learned Additional Sessions Judge, West Tripura, Sonamura since the offence under Section 304B is exclusively triable by the Court of Sessions. 10. The learned Sessions Judge on examination of the materials so placed by the charge sheet framed the charge against the appellants and accused Bimal Acharjee under Section 498A and secondly under Section 302 read with Section 34 IPC in terms as follows: That few months after the solomnisation of the marriage between Soma Acharjee and Gour Acharjee that took place on 18th day of Falguna, 1412 B.S. corresponding to 3rd day of March, 2006, you Gour Acharjee being her husband and you Bimal Acharjee, Arati Acharjee and Nitai Acharjee being her father-in-law, mother-in-law and brother-in-law respectively at your house at South Kalamcharra under Kalamcharra P.S. subjected her to cruelty, both physically and mentally on the demands of dowry which included the demand of a motorcycle and other articles and the torture continued till 16th June, 2007 and thereby committed an offence punishable under Section 498A of the Indian Penal Code and within my cognizance. Secondly, that you on or about 16th day of June, 2007 at about 7 a.m. at your house at South Kalamcharra under Kalamcharra P.S. infurherence of common intention of you all to wit to cause murder of Soma Acharjee did murder her by intentionally causing her death and thereby committed an offence punishable under Section 302 read with Section - 34 of the Indian Penal Code and within my cognizance, 11. The appellants and said Bimal Acharjee pleaded not guilty and claimed to be tried. The prosecution examined as many as fifteen witnesses and brought on evidence fifteen documents as Exhibit 1 to Exhibit 15 including the post mortem report, hand sketch map with index, seizure list, etc. 12. Mr. R.P. Sharma, learned senior Counsel appearing for the appellants submitted that against the appellant No. 2 and 3, there is no legal evidence to convict them under Sections 302 and 498A IPC. He further asserted that the appellant No. 3 was juvenile on the day of commission of offence, i.e., on 16.6.2007. 13. 12. Mr. R.P. Sharma, learned senior Counsel appearing for the appellants submitted that against the appellant No. 2 and 3, there is no legal evidence to convict them under Sections 302 and 498A IPC. He further asserted that the appellant No. 3 was juvenile on the day of commission of offence, i.e., on 16.6.2007. 13. Referring to the report dated 18.9.2010 wherein the learned Sessions Judge held that till 6.6.2009, he did not attain the age of 18 years, he submitted that on 16.6.2007, the appellant No. 3 did not attain the age of 18 years and as such, he was a juvenile. This report as forwarded in compliance to the order dated 27.8.2010 has not been challenged by the learned P.P. appearing for the State. 14. On the other hand, Mr. D. Sarkar, learned P.P. appearing for the State submitted that the chain of circumstantial evidence has been completed by the evidence as led by the prosecution irresistively pointing at the guilt of the appellants under Section 302 IPC read with Section 34 IPC and under Section 498A IPC as well. 15. The rival contentions can hardly be analyzed unless a brief journey is made through the evidence as recorded by the learned Additional Sessions Judge. 16. Before the oral testimonies are appreciated, it is to be noted that out of fifteen witnesses, six witnesses (P.W. 1, P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 12) were declared hostile by the prosecution as at some stage they did not support the prosecution case and accordingly, these witnesses were cross-examined by the prosecution. 17. One Dhiraj Biswas, the Upa-Pradhan of South Kalamchoura Gram Panchayat, was examined as P.W. 1. In his deposition, he stated that the appellant No. 1 and the deceased got married and the deceased died about one and half years back. One day, after about 8/9 months of their marriage, father of the deceased came to him and introduced himself and thereafter he complained that his daughter was being tortured by the appellant No. 1. On hearing that complaint, he went to the house of the appellant No. 1 and enquired about the incident. He also enquired about the incident from the deceased. The deceased at the relevant point of time informed that she would not stay there. 18. On hearing that complaint, he went to the house of the appellant No. 1 and enquired about the incident. He also enquired about the incident from the deceased. The deceased at the relevant point of time informed that she would not stay there. 18. Since the deceased at that time was aged about 15 years, he advised her father, namely, Swapan Acharjee, to take her back for the time being. Accordingly, she was taken back. After about a month, the informant came to him and informed that his daughter was willing to stay with her husband. Then he advised him to come with his daughter and the Pradhan of Ghaniamara Panchayat. Accordingly, the informant, Pushpa Das, Pradhan of Ghaniamara Panchayat and some other persons of that area came to him. A meeting was held in the house of one Gopal Das. From the side of the Appellant No. 1, his parents, Simal Acharjee and Arati Acharjee, brother Nitai were present in the meeting. In the meeting, the deceased contended that she was being tortured by her husband for the delay in delivering the motor cycle that was to be given by her father. By that time, the motor cycle was already delivered. In the meeting, all advised the appellant No. 1 and his guardians that there should not be any other complaint against them. After that meeting, the informant allowed his daughter stay in the house of her husband. In the meeting, a written resolution was also taken. It was written as per the decision taken and was read over. He identified that resolution (Exbt. 1). In the said resolution, the' deceased and her father along with the appellant No. 1 and his parents put their signatures. 19. After about 20/22 days, one morning, around 8 a.m., he heard that deceased committed suicide. Immediately, he rushed there and found her hanging from the roof in a room in the southern bhiti. Around 12 noon, father of the deceased arrived. Thereafter, the police came and brought down the dead body and prepared the inquest report in their presence and their signatures were taken thereon. He identified his signature as Exbt. 2. He was also examined by the police in connection with the; said case, but he stated that he did not state anything against other accused persons. 20. Thereafter, the police came and brought down the dead body and prepared the inquest report in their presence and their signatures were taken thereon. He identified his signature as Exbt. 2. He was also examined by the police in connection with the; said case, but he stated that he did not state anything against other accused persons. 20. At that stage, he was declared hostile at the instance of the prosecution and subjected to cross-examination. During cross-examination, he stated that the room of the appellant No. 1 is bounded by Jatindra Das, Pradip Sarkar, Haru Sarkar and Sonadhan Sarkar on the north, by the houses of Chitta Das, Rupasi Das and Kanu Das on the east, by the Sonamura-Boxanagar road on the south and by the house of Rami Das and Kanan Das after the road on the west. The house of Nikunja Das and Manoranjan Das are on the southern side after the road. After purchase of motor cycle, the appellant No. 1 left with Soma and stayed in the house of his father-in-law for about four months. After examining the dead body, the police prepared the report and read it over to them. 21. One Pintu Kr. Sarkar was examined by the prosecution as P.W. 2. He also stated alike P.W. 1. But he added that the deceased wanted assurance from her husband that he would not torture her further so that she could live with him. Thereafter, the resolution (Exbt. 1) was taken. He further stated that Bimal Acharjee, one of the accused, informed him that the deceased had committed suicide. He then accompanied him to his house and found Soma hanging in the southern bhiti room. Thereafter, the police arrived and prepared a seizure list whereupon he put his signature (Exbt.-4). The police also seized a hammer which was identified by him. (Exbt.-MO 1). 22. At that stage, this witness was declared hostile. In the examination-in-chief, he categorically stated that 'Soma did not make any complaint against any other accused persons except her husband'. 23. One Smt. Kanan Das, a neighbour of the appellant No. 1 appeared and deposed as P.W. 3 who was also declared hostile and she did not reveal anything; of relevance. 24. P.W. 4, namely, Shri Rana Deb, was the scribe of the written complaint. He has also not revealed anything of material consequence. 25. 23. One Smt. Kanan Das, a neighbour of the appellant No. 1 appeared and deposed as P.W. 3 who was also declared hostile and she did not reveal anything; of relevance. 24. P.W. 4, namely, Shri Rana Deb, was the scribe of the written complaint. He has also not revealed anything of material consequence. 25. Smt. Ranu Das, a member of South Kalamchoura Gaon Panchayat, was examined as P.W. 5. She stated that after about six months of the marriage, one day, the parents of Soma (deceased) came to her and informed that their daughter was being tortured by the appellant No. 1. Then she: advised them to inform the matter to the Panchayat and they did so. Thereafter, a preliminary meeting involving two sides was held. She asserted that the last meeting had taken place about twenty days before her death. She also confirmed that Exbt. 1 is the resolution. However, this witness was also at that stage declared hostile. Some portion of her previous statement as recorded under Section 161 Cr. P.C. by the Investigating Officer was shown to her, but she denied those to be her statement. She did not reveal anything of material consequence in the entire cross-examination as led by the prosecution. 26. One Haripada Nama was examined by the prosecution as P. W 6 who stated that without showing the hammer which was seized by the police, his signature was taken on a paper, indicating the seizure list. However, he identified his signature. 27. Sri Swapan Acharjee, the father of the deceased and the informant, was examined as P.W. 7. He reiterated the narrative as depicted in the ejahar, but with some addition. He stated that the appellant No. 1 was demanding a motor cycle, but even after giving the motor cycle, the deceased was not spared from torture. He also confirmed that he informed the matter to Smt. Ranu Das, the member, Pintu Das, the Ex-pradhan and the Upa-pradhan of the locality. After hearing him, a meeting was fixed in the house of Ranu Das. In the said meeting, Soma was asked a about the problem when she stated that her husband, mother in law and the brother in law used to assault her on demand of money. The meeting ended with advice to his daughter to stay with them and then they returned. 28. In the said meeting, Soma was asked a about the problem when she stated that her husband, mother in law and the brother in law used to assault her on demand of money. The meeting ended with advice to his daughter to stay with them and then they returned. 28. After two days, the deceased was subjected to torture again by those three persons and she pleaded for sending some money so that there was some respite from the torture. Within a fortnight, second meeting took place in the neighbouring house of Ranu Das. The second meeting was attended almost by the same persons who attended the first meeting. In the meeting, his daughter broke down and stated that she was unable to stay in the house of her husband for torture. The Upa-pradhan, Pintu Das and Ranu Das advised her to stay with her husband and assured that they would keep vigil over. As the meeting ended, they returned. 29. After about four days, torture had become unbearable and Soma pleaded to rescue her. Within a fortnight, third meeting was held in the venue of the second meeting and persons were almost the same who attended the earlier meeting. In the said meeting also, Soma expressed her helpless condition and her inability to stay in the house of her husband because of torture of the appellants. The P.W. 7. further stated that after fifteen days, one day, the appellant No. 1 went to his house with Soma and left her there. When asked, Soma revealed that she was severely assaulted by Arati and Nitai in absence of her husband. 30. On the following day, he learnt from Ranu Das over telephone that the appellant No. 1 had disposed of the motor cycle and left for Bihar. After about three months, the appellant No. 1 suddenly came to his house and asked Soma to accompany him to Bihar. He then asked him to cool down and think over the matter. The appellant No. 1 left thereafter. After a few days, he again contacted the Upa-pradhan and member of South Kalamchoura Panchayat. Pintu Das was also apprised of. 31. In consequence thereof, on 27.5.07, a meeting was held in the house of Ranu Das which was attended by members of both the parties and also by Smt. Pushpa Das, the pradhan of Ghaniayamara Panchayat. After a few days, he again contacted the Upa-pradhan and member of South Kalamchoura Panchayat. Pintu Das was also apprised of. 31. In consequence thereof, on 27.5.07, a meeting was held in the house of Ranu Das which was attended by members of both the parties and also by Smt. Pushpa Das, the pradhan of Ghaniayamara Panchayat. Nur Mian, the member, Sankar Gun, his daughter Soma, Gopal Acharjee and his wife were also present. The Upa-pradhan, Ranu Das and Pintu Das of Kalamchoura and all the accused persons were present. Soma again complained of the torture, upon her by the accused persons and she did not want to return. Pintu Das took the initiative to settle the matter and asked the appellant No. 1 and Nitai to seek pardon from them and to make promise that they would not torture upon Soma further. Bimal Acharjee and Arati Acharjee were also advised to ensure that there was no further torture upon Soma, The said resolution of the meeting was reduced into writing and the signatures of both the parties were taken on it. 32. On 16.6.2007, around 8 a.m., the appellant No. 1 informed him over telephone that Soma had committed suicide by hanging. Hearing this, he went to the Kalamcherra PS along with one Gopal Acharjee and the local people of his area. He filed the ejahar (Exbt.-7). The police went to the house of the appellant No. 1 and found the dead body of Soma hanging from the ceiling in the southern bhiti room. When the dead body was brought down, he found a black spot on her neck and another on the chest. The police prepared a report after seeing the dead body and obtained his signature therein. He identified his signature on the inquest report (Exbt. 2). 33. In his cross-examination, he however admitted that he did not mention in the complaint that the appellant No. 1 demanded motor cycle and after delivery of the motor cycle, he met with an accident. He also admitted that due to the said accident, the appellant No. 1 was hospitalized for a month and thereafter, he remained on bed rest for about forty-five days. However, all the suggestions as advanced by the defence were denied by him. He also admitted that due to the said accident, the appellant No. 1 was hospitalized for a month and thereafter, he remained on bed rest for about forty-five days. However, all the suggestions as advanced by the defence were denied by him. He also admitted that he did not mention in the complaint that he called the appellant No. 1 for taking delivery of the motor cycle from Agartala and after about four days of the delivery of the motor cycle, Soma informed over telephone that torture upon her was still continuing for cash money. He also admitted that two days after the first meeting, Soma informed him over telephone that money be sent by him so that she could get some respite. He also admitted that he did not mention in the complaint that within the next fortnight of the second meeting, the third meeting was arranged. The appellant No. 1 went with Soma to his house and left her there after he recovered from the injuries caused by the accident. 34. P.W. 8, namely, Smt. Litan Rani Acharjee, was the mother of the deceased. She stated in the same line of P.W. 7. It is almost replica of the statement of P.W. 7, however, she admitted that she did not state to the police officer that she used to inform Nur Miah and Pushpa Das about the torture. She also admitted that she did not mention to the police officer that Soma was not being given food properly and accused Bimal Acharjee used to instigate others to torture her daughter. She also denied the suggestion as made by the defence. 35. One Smt. Pushpa Das who was examined by the prosecution as P.W. 9 stated that Swapan Acharjee and his wife Litan Acharjee are known to her. After about 6 months of the marriage of Soma, one day she along with her mother Litan Acharjee went to her house. Soma informed that she was being tortured by her husband, brother-in-law and mother-in-law. She advised her to inform the matter to the Panchayat of that area. Subsequently, she wrote a letter to Rami Das, a member of the Panchayat in this regard. 36. On 27.5.2007, a Panchayat meeting was held in the house of Ranu Das in which both the parties were present. She also attended the meeting. She advised her to inform the matter to the Panchayat of that area. Subsequently, she wrote a letter to Rami Das, a member of the Panchayat in this regard. 36. On 27.5.2007, a Panchayat meeting was held in the house of Ranu Das in which both the parties were present. She also attended the meeting. In that meeting, Soma stated that she was assaulted and tortured by the accused persons. A written resolution was taken (Ext. 1) and she identified her signature therein. In the cross examination, she did not deviate from her statement despite suggestion made on behalf of the defence. 37. P.W. 10, namely, Sri Gopal Acharjee, stated nothing of relevance. He stood as an witness to the inquest report whereas P.W. 11, namely, Gani Miah, was the seizure witness to the wearing apparels of the deceased. He admitted his signature (Exbt. 11) which was obtained on 16.6.2007. 38. One Sri Titan Das was examined as P.W. 12 who was declared hostile at the instance of the prosecution and subjected to cross-examination. He categorically stated that he was examined by the police officer, but he did not state anything, except that he found the deceased hanging from the ceiling of the partitioned portion of the room. By cross examination, no purpose, as it appears, has been served for the prosecution. 39. Dr. Bhanu Bhusan Deb, who conducted the post mortem examination on the dead body of the deceased which was identified by Pintu Kr. Sarkar and others, was examined by the prosecution as P.W. 13, who described ante mortem injuries as were available on the body of the deceased which are as follows: 1. 1/2 " X 1/2, " small haematomma over sternum (front middle portion of chest). 2. 1/2 "X 1/2" haematomma over right angle of the mandible (right side of the face (jaw). 3. 1/2 " X 1/2" haematomma over the occipital area. No typical ligature mark was seen. A flat depressed measuring 3" X 5" (U shaped) over left side of neck was found. No abrasion or ecclimosis on that area was seen. There was depressed fracture of the scalp. No cervical vertribae fracture was seen. 3. 1/2 " X 1/2" haematomma over the occipital area. No typical ligature mark was seen. A flat depressed measuring 3" X 5" (U shaped) over left side of neck was found. No abrasion or ecclimosis on that area was seen. There was depressed fracture of the scalp. No cervical vertribae fracture was seen. The details about the injuries seen in the thorax region, abdomen and muscles bones and joints are mentioned in the report, a pages 2 & 3 more detail description about the external and internal injuries is mentioned in the report. 40. He further stated that from the external and the internal injuries observed during the post mortem examination, the cause of death was head injury caused by blunt weapon like hammer. This opinion is mainly based on the injury No. 3 above mentioned, which resulted in congestion of the affected area. The consequent depressed fracture of occipital area caused pia, dera arachnoid and the matter of that affected area got congested. The brain tissue of the affected area was also congested. The patient was later on put on hanging. So it was a case of homicidal hanging. The basis of this conclusion is that there was no typical hanging ligature mark on the left lateral side of neck where skin tissues were pressed with an area of 3" X 5" (U shaped) where no abrasion or acchimosis was seen. There was no congestion seen in conjunctiva, eye lids, face, nose, or pharynx, laringo pharynx and tongue, which are generally seen in a case of hanging. Tongue was not also protruded. He has stated that he has given detailed report regarding examination of the dead body of the deceased (Exbt.-13). He also identified his signature therein. 41. In his cross examination, certain questions were suggested to him, but he did not accede to any of these suggestions. When he was asked whether the word 'hammer' appeared in his opinion for the reason that the police stated that hammer was seized, he immediately replied that from the injuries, he stated about the nature of weapon used for causing injuries. He further elaborated that after sustaining these injuries, a person can survive for hours. This is particularly so for the injury of the occipital region. He also stated that by using the word 'homicidal hanging', he meant hanging by others. He further elaborated that after sustaining these injuries, a person can survive for hours. This is particularly so for the injury of the occipital region. He also stated that by using the word 'homicidal hanging', he meant hanging by others. According to him, in case of suicidal hanging, the mode of death may be by (1) Asphyxia; (2) Syncope and (3) Coma. A person trying to commit suicide by hanging may survive, if rescued, within 5 to 10 minutes. Cricoids cartilage thyroid cartilage and cervical vertebra may not be there in all cases of suicidal hanging. He, however, denied the suggestion that there will be no ligature mark, bruise or ecchimosis, if long and soft ligature is used. He further elaborated that even though he has no specialization in Forensic Medicines and Toxicology, he has sufficient experience. He further stated that all fractures in the occipital region may not cause death. The injury of this nature in the occipital region causes internal hemorrhage. This type of hemorrhage has been found in this ease. He also denied that his opinion about the cause of death was an incomplete opinion. He categorically stated that since 29th February, 1984 he has been performing post mortem examination as the Medical Officer in the Tripura Health Services. 42. One Sri Jatindra Das appeared as P.W. 14 at the instance of the prosecution who stated that four accused persons were his neighbor. He knew the deceased as the wife of the appellant No. 1. Immediately after the marriage, their relations were good and the deceased died about one and half year back. Two days before the death, the deceased Soma came to his house in the evening and on being asked, she stated that her mother-in-law did not provide her food and she had taken food elsewhere. Even on the next evening also, she was found sitting on the veranda. He further stated that he heard altercations with hue and cry going on inside the house of the appellant No. 1. On that night, at around 11 p.m., he saw her sitting in the veranda. At about 1.30 p.m. he heard cries of Soma. On the following morning, at around 6.35 am., he again heard cries of Soma saying 'ma go' twice. After about three/four minutes, he heard the cries of Titan. Immediately thereafter, he came out and asked Titan what had happened. At about 1.30 p.m. he heard cries of Soma. On the following morning, at around 6.35 am., he again heard cries of Soma saying 'ma go' twice. After about three/four minutes, he heard the cries of Titan. Immediately thereafter, he came out and asked Titan what had happened. Then Titan said that Soma had committed suicide. Then he rushed to the room of the appellant No. 1 and found him lying on the bed with the face pressed downward against a "pillow and the body of Soma hanging from ceiling. Seeing her in that condition, he looked downward, but did not find any stool or anything like that. He wondered as to how Soma could hang herself. He then noticed that the body of deceased was hanging with a piece of saree which he found that the mother of the appellant No. 1 wore on the previous day. Thereafter, he called the parents of the appellant No. 1 from the northern bhiti room and after about an hour, the police arrived there. 43. In his cross-examination, he stated that he heard the cries of Soma, which was not appearing in the previous statement as recorded by the investigating officer under Section 161 CrPC. He also denied all the suggestions put by the defence. He stated in reply to a question put by the Court that since he is a patient of Asthma, he had to pass sleepless night and that is the reason of hearing the cries of Soma at 1.30 a.m. 44. The investigating officer, namely, Sri Kamal Chakraborty, was examined by the prosecution as P.W. 15. He narrated how he was entrusted with the investigation, completed the investigation and filed the charge sheet. He also stated that after receipt of all the reports including the post mortem report, he filed the charge sheet on finding a prima facie case under Sections 498A/ 34/ 304B IPC. 45. It is required to be noted that the previous statements of the hostile witnesses as recorded under Section 161 Cr. P.C. or excerpts thereof were admitted in the evidence and those were affirmed by the P.W. 15. 46. From the seizure list, dated 22.6.2007, it is apparent that one hammer, a heavy piece of iron fixed on the upper portion of a wood measuring half cubit, was seized from the place of occurrence (Exbt. 10). 47. From the hand sketch map (Exbt. 46. From the seizure list, dated 22.6.2007, it is apparent that one hammer, a heavy piece of iron fixed on the upper portion of a wood measuring half cubit, was seized from the place of occurrence (Exbt. 10). 47. From the hand sketch map (Exbt. 15) with index, it appears that 'A' is the place of occurrence which is the hut of the appellant No. 1. 48. From the post mortem report, the description of the injuries on the deceased is excerpted hereunder for appreciation: Three injuries are seen over front of chest wall (over sternum) over Rt angle of mandible and over occipital area with small hematoma which indicates that the injuries were inflicted during immediate life time. No typical hanging ligature mark seen. Lt. lateral side of neck where skin tissue were pressed with an area of 3" breath and 5" length (U-shaped), where no abrasion or ecchimosis seen, indicates circulatory failure and no inflammatory sign seen, i.e., she was dead and so called pressed area was below the Thyroid cartilage. No congestion is seen in conguncture, eye lids, face, nose oropharyno, larigo pharynx and tongue. Tongue is not protruded. No vaginal discharge seen. No faecal matter seen in anus. 49. It is evident from the oral testimonies as well as from Exbt.-15 (hand sketch map) that the place of occurrence is the dwelling hut of Sri Gour Acharjee, the appellant No. 1, where the deceased was found hanging. 50. It can also be had from the hand sketch map that "C" was the dwelling hut of Sri Bimal Acharjee, one of the accused who has already been acquitted. 51. It would further, be evident from the cross-examination of P.W. 1 that the place of occurrence is bounded by the houses of Jatindra Das, Pradip Sarkar. Haru Sarkar and Sonadhan Sarkar on the north, by the houses of Chitta Das, Rupasi Das and Kami Das on the east, by the Sonamura-Boxanagar road on the south and by the houses of Rami Das and Kanan Das after the road on the west. 52. Since the occurrence took place in the said dwelling hut of the appellant No. 1, the knowledge as to how the deceased was hanged was exclusively available with the said appellant, as the P.W. 4 located him on the day break at that hut. 52. Since the occurrence took place in the said dwelling hut of the appellant No. 1, the knowledge as to how the deceased was hanged was exclusively available with the said appellant, as the P.W. 4 located him on the day break at that hut. But no explanation or revelation has been made by the appellant No. 1 in the trial to discharge his obligation under Section 106 of the Evidence Act. It is crystallized by this time that the prosecution is not divested of its onus in view of the provisions of Section- 106 of the Evidence Act. But in some cases, the onus lies on the person against whom the charge is brought and it is found that special knowledge can only be disclosed by him. 53. In Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404 wherein the Apex Court held 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 top relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or 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 pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23)(A) and Seneviratne v. R. 1936-3 All ER 36 ATP. 49(B). 12. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23)(A) and Seneviratne v. R. 1936-3 All ER 36 ATP. 49(B). 12. Illustration (b) to Section 106 has obvious reference to a very special type of case namely, to offences under Sections 112 and 113, Indian Railways Act for traveling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass of ticket or, in the case or loss or of some other valid explanation, to set it out and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity. 54. It implies that in finding out and proving certain fact balanced against the triviality of the issue might be at stake and the case with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used, to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and it never shifts. 55. In this case, it would be humanly impossible for the prosecution to give accurate explanation unless it is disclosed by the appellant No. 1 of his special knowledge as to how the deceased was hanged. This provision has two aspects-(1) it assures the accused's protection against any adverse inference in absence of disclosure or explanation and (2) it assures the ends of securing justice. 56. In State of W.B. Vs. Mir Mohammad Omar & Ors., (2000) 8 SCC 382 , the Apex Court further enunciated the law, wherein the Apex Court held: 31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. Mir Mohammad Omar & Ors., (2000) 8 SCC 382 , the Apex Court further enunciated the law, wherein the Apex Court held: 31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. 38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: 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 prove without difficulty or inconvenience. The word 'especially' stresses that it means facts that are pre-eminently or exceptionally within his knowledge. 39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the dead body was found are enough to draw an inference that victim's death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed. 57. The Apex Court has approved the Shambhu Nath Mera (supra) and held that the burden of proof is always on the prosecution to prove the guilt of the accused and it should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. If the traditional rule relating to the burden of proof of the prosecution is allowed to be wrapped in a pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. As such, if anything occurred within the exclusive knowledge of the accused, he must reveal that knowledge else the presumption adverse to him would immediately be taken, as it empowers the Court to presume the existence of any fact which it thinks likely to have happened. 58. As such, if anything occurred within the exclusive knowledge of the accused, he must reveal that knowledge else the presumption adverse to him would immediately be taken, as it empowers the Court to presume the existence of any fact which it thinks likely to have happened. 58. Similarly, the law has been enunciated by the Apex Court in Ram Gulam Chaudhary & Ors. Vs. State of Bihar, (2001) 8 SCC 311 . In the following passage from Ram Gular Chaudhary (supra), it would be apparent that the Apex Court has stated that where prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain facts unless the accused by virtue of special knowledge offers an explanation which might lead the Court to draw a different inference. 59. It has been proved conclusively by the prosecution that the appellant No. 1 was present at the time of hanging which was found later on that the murder took place prior to the hanging. But the appellant No. 1 even did not faintly endeavour to discharge the burden as heavily shifted on him as the murder and hanging was within his special knowledge. Therefore, adverse presumption has to be drawn against the appellant No. 1 as the chain of circumstantial evidence is otherwise complete and it irresistively points out at the appellant No. 1 for commission of murder followed by hanging of the deceased. In absence of the explanation in regard to the special knowledge only with the appellant No. 1, it has to be held that none other than the appellant No. 1 had committed the murder of the deceased and thereafter, she was hanged by him. 60. But similar adverse inference cannot be drawn against the other appellants, namely, Smt. Arati Acharjee and Sri Nitai Acharjee, as it has been exposed from the evidence as led by the prosecution that those two appellants were not sharing the said dwelling hut. They gathered in the P.O. only when the P.W. 14 called out them from their hut. However, against them, some evidence here and there has been made which might link them to the commission of offence under Section 498A IPC. 61. They gathered in the P.O. only when the P.W. 14 called out them from their hut. However, against them, some evidence here and there has been made which might link them to the commission of offence under Section 498A IPC. 61. For that purpose, if we look at the evidence of P.W. 1, it evinces that he has categorically stated that the allegations of the deceased was only against the appellant No. 1 and the said witness, namely, Dhiraj Biswas, is a disinterested witness. Even P.W. 2, Pintu Kr. Sarkar, has categorically stated that trouble was between the deceased Soma and her husband. Similarly, P.W. 5, namely, Smt. Rami Das, has stated that the allegations of deceased were only against the husband, i.e., the appellant No. 1. Even though the P.W. 1, 2, 3 and 5 was declared hostile, but they were not declared hostile while they were making that particular statements and as such, the prosecution had no intention to declare them hostile on the basis of those statements. 62. However, P.W. 7, namely, Swapan Acharjee, has stated that his daughter stated to him that all the appellants including one Bimal Acharjee tortured her daughter, but the mother of the deceased only stated about the appellants herein that they used to torture upon her daughter for non-delivering of one bike. 63. One Smt. Puspa Das, as P.W. 9, also reverberated the statements of P.W. 7 and 8. 64. The statements of P.W. 7, 8 and 9 are so vague against the appellant No. 2 and 3 that such vague statements without specific details cannot be relied upon, particularly, when it is found that in all the meetings, the appellant No. 2 and 3 were invited for finding a negotiated settlement with the appellant No. 1. Perceptions however strongly represented in the wake of the tragic death, those cannot overshadow the required proof in regard to existence of certain facts. 65. It is quite natural that after the death of their daughter, their anger must have brought all the inmates of the deceased into the ring of revenge as the human perceptions tend to believe that they could have prevented that untoward incident As a result, it is very difficult to believe the statements of those witnesses, particularly, if juxtaposed against the evidences of P.W. 2, 3 and 5, who are completely disinterested witnesses. 66. 66. Therefore, the appellant No. 2 and 3 are entitled to get benefit of doubt. As corollary to these findings, the impugned judgment of conviction and order of sentence against the appellant No. 2 and 3 are hereby set aside and they are acquitted from the charge under Sections 302 and 498A IPC on benefit of doubt. 67. However, this Court finds the existence of the overwhelming circumstantial evidence to hold that the: charge against the appellant No. 1 has been established on demolishing the hypothesis of innocence to the hilt and proved beyond reasonable doubt. Therefore, the judgment of conviction and order of sentence as passed against the appellant No. 1 is hereby confirmed. With these observations, the appeal is partly allowed. The appellant No. 2 and 3 be released forthwith. Send down the L.C. records forthwith.