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2013 DIGILAW 808 (CAL)

Sudeb Chowdhury v. State of West Bengal

2013-10-09

ASIM KUMAR RAY, N.PATHERYA

body2013
JUDGMENT : Asim Kumar Ray, J. 1. This appeal is directed against the judgment, order of conviction and sentence dated 21-7-2005 passed in Sessions Trial No. 1(12)/2004 arising out of Sessions Case No. 8(10)/2004 by learned Additional District and Sessions Judge, Fast Track Court, Bishnupur, Bankura whereby the appellant Sudeb Chowdhury was found guilty for the offence punishable under Section 302 IPC, convicted and sentenced to suffer R.I. for life and to pay a fine of Rs. 5,000/- in default to suffer R.I. for two years. 2. Concisely stated, the case of the prosecution is that on 1-2-2004 around 8.30 a.m. appellant Sudeb Chowdhury reported to the de facto complainant that his wife Sakuntala Chowdhury has expired. The de facto complainant along with some other villagers arrived at the house of the appellant and found that the wife of the appellant was lying dead on a cot in his room. They suspected foul play and enquired as to how the victim died. The appellant then confessed before the villagers that on 31-1-2004 at about 11/12 p.m. he had murdered his wife by throttling. 3. The de facto complainant lodged a written complaint at Bishnupur Police Station and on the basis of such complaint Bishnupur P.S. Case No. 6/2004 dated 1-2-2004 under Section 302 IPC against the appellant was started. The investigation was taken up. On completion of the investigation charge sheet under Section 302 IPC was submitted against the appellant Sudeb Chowdhury. 4. The case was committed to the learned Court of Sessions, Bankura. It was subsequently transferred to the Court of the Additional District and Sessions Judge, Fast Track Court, Bishnupur, Bankura for disposal. 5. On receipt of the case on transfer the Additional District and Sessions Judge, Fast Track Court, Bishnupur took up the trial. Charge under Section 302 IPC was framed against the appellant Sudeb Chowdhury which was read over and explained to him to which he pleaded not guilty and claimed to be tried. 6. In course of trial 20 witnesses were examined and document exhibited. After hearing the argument advanced by the learned counsel of the parties and on appreciation of the evidence on record the learned Court below passed the judgment, order of conviction and sentence impugned. So this appeal. 7. 6. In course of trial 20 witnesses were examined and document exhibited. After hearing the argument advanced by the learned counsel of the parties and on appreciation of the evidence on record the learned Court below passed the judgment, order of conviction and sentence impugned. So this appeal. 7. Learned counsel appearing for the appellant has contended that the evidence of prosecution witness No. 1 to 4, 12, 17 and 20 may be looked into and the evidence of rest of the witnesses are of no help to the prosecution as they are either hearsay or formal in nature. He has invited our attention to the impugned judgment vide page 88 of the paper book and has contended that the learned Court below has formulated the chain of circumstances observing that the same are consistent with the guilt of the accused person. He has invited our attention to point No. 2 specially "the accused person was also found lastly seen in that room at about 10 p.m. of that fateful night". He has contended that there is no evidence to the effect that accused and the victim wife was in the bed room together. It cannot be presumed that he was in the bed room and it is he who has committed the offence. The extra judicial confession alleged to have been made by the appellant cannot be taken for consideration as it is inadmissible in law. It was not a voluntary one. The appellant was confined at Baramela and even assaulted for extracting the alleged confession. There is a different version too. Some of the witnesses have stated that the appellant made an extra judicial confession immediately after interrogation but some have stated that he made such confession after his detention in Baramela. There is no presumption in law available to show that the appellant was in the bed room. The said fact is required to be proved by positive evidence. The prosecution has failed to prove it so the appellant is under no obligation to prove that he was elsewhere. He has referred to decisions reported in 1996 SCC (Cri) 59: (1991) 1 SCC 286 (Balwinder Singh v. State of Punjab) and 2007 (2) E.Cr.N. 43 (Raj Kumar Prasad Tamarkar v State of Bihar and another). He has contended that the judgement, order of conviction and sentence be interfered with and set aside. 8. He has referred to decisions reported in 1996 SCC (Cri) 59: (1991) 1 SCC 286 (Balwinder Singh v. State of Punjab) and 2007 (2) E.Cr.N. 43 (Raj Kumar Prasad Tamarkar v State of Bihar and another). He has contended that the judgement, order of conviction and sentence be interfered with and set aside. 8. Learned counsel appearing for the State has contended that the victim wife of the appellant had an unnatural death in the bed room of her matrimonial home. Evidence of prosecution witness Nos. 1, 2, 3 and 4 gives a clear picture that accused has confessed that he has murdered his wife. In examination under Section 313 Cr. P.C. the appellant has said that he was at the poultry farm of Gora Chand babu so the burden of proof shifted to the appellant and Section 103 of the Indian Evidence Act, 1872 comes into play. If the appellant is unable to show that he was elsewhere then it should be within his special knowledge as to how his wife met with a homicidal death. The prosecution has proved its case by substantive evidence. The judgment, order of conviction and sentence impugned may be upheld. 9. We have taken stock of the argument advanced by the learned counsel of the parties. We have gone through the evidence on record meticulously. It is an admitted fact that the victim is the wife of the appellant Sudeb Chowdhury she expired on 31-1-2004 at night. One Ajit Barui of village Lokesol, P.S. Bishnupur, District-Bankura/prosecution witness No. 1 lodged the FIR at Bishnupur P.S. on 1-2-2004 at 11.40 hours. The Bishnupur P.S. Case No. 6/2004 dated 1.2.2004 under Section 302 IPC was initiated on the basis of the said FIR. Inquest was conducted by Baroda Prasad Dey, Sub-Inspector of Police Bishnupur P.S./P.W. 20-I.O. of the case as well as Kamala Kanta Chattopadhyay/P.W.10, the Block Development Officer and Executive Magistrate of Bishnupur Block. After inquest the dead body of the victim was sent to Sub-divisional Hospital , Bishnupur for post mortem examination through Constable 404 Pranab Kumar Acharjee/P.W.5. Dr. T.K.Pal/P.W.17 held post mortem examination of the dead body of the victim on 2.2.2004 in connection with Bishnupur P.S. Case No. 6 of 2004 dated 1.2.20004 and Bishnupur U.D. Case No. 15/04 dated 1.2.2004 10. Dr. Pal (P.W.17) was subjected to lengthy cross-examination during trial but his evidence remained unshaken. 11. Dr. T.K.Pal/P.W.17 held post mortem examination of the dead body of the victim on 2.2.2004 in connection with Bishnupur P.S. Case No. 6 of 2004 dated 1.2.20004 and Bishnupur U.D. Case No. 15/04 dated 1.2.2004 10. Dr. Pal (P.W.17) was subjected to lengthy cross-examination during trial but his evidence remained unshaken. 11. P.W. No. 1, the de facto complainant has stated in his evidence that on 1.2.2004 around 8.30 a.m. the appellant came to his house and stated that his wife had expired. On hearing the death of the victim he along with some other villagers went to the house of the appellant and saw the dead body of the victim lying on the cot of their bed room. He has stated further that the appellant confessed his guilt in the presence of villagers that he murdered his wife by strangulation and throttling. He lodged written complaint (Ext. 1) before the Officer-in-Charge of Bishnupur Police Station. In his cross-examination he has stated that he had been to the house of the appellant around 9 a.m. and on arriving there he found 10/15 villagers. He along with Debdulal Chowdhury (P.W. No. 4), Swapan Chowdhury (P.W.3), Chandranath Murmu (P.W. 6) and Sarathi Mukherjee (P.W.12) entered into the house of the appellant. 12. Prosecution witness No. 2 has stated in his evidence that on hearing of the murder of the victim he arrived at the house of the appellant. He saw the dead body of the victim. Villagers assembled there. They confined the appellant and his parents in a room of Baramela of their village. The appellant confessed his guilt and someone also assaulted him. 13. P.W. No.3 and P.W. No. 4 have stated alike prosecution witness No. 1 in course of their evidence. P.W. No. 3 has stated in his chief that he saw the appellant in his room at 10 p.m. which he has not stated to the Investigating Officer. He has stated further that the appellant along with his parents were confined at Baramela. 14. P.W. No. 5 to P.W. 15, P.W.18 and P.W.19 are either formal witness or their evidence is hearsay. 15. P.W.16 has stated in his evidence that the appellant murdered his wife by throttling which he has not stated to the I.O. P.W. 7 is the Autopsy Surgeon who has stated that on examination of the dead body he found the following : "1. 15. P.W.16 has stated in his evidence that the appellant murdered his wife by throttling which he has not stated to the I.O. P.W. 7 is the Autopsy Surgeon who has stated that on examination of the dead body he found the following : "1. Body decomposed, 2. Rigor mortis absent, 3. Thyroid and Hyoid cartilage broken, 4. Blood clot inside trachea and larynx and 5. Blood clot around neck muscles in front trachea and larynx." 16. He gave his opinion that the "death was due to asphyxia in case of strangulation ante mortem and homicidal in nature." 17. P.W.20 is the Investigating Officer. He has stated as to how he has conducted the investigation and on completion of the same he submitted charge sheet. 18. On an analysis of the evidence of P.W. 1 to P.W.4 it is evident that the appellant was taken to Baramela (temple of Goddess Saraswati of the village) by the villagers. He was confined in a room along with his parents. He was even assaulted by some of the villagers. It is coming out from the evidence that the appellant confessed before the villagers that he had murdered his wife by strangulation and throttling. This extra judicial confession of the appellant cannot be taken for consideration as it was not a voluntary one. It is not admissible in law so the same is valueless and is of no assistance to the prosecution. 19. It is an admitted fact that the dead body of the wife of the appellant was found on the cot of the bed room of the appellant and the victim. The cot was seized by the I.O. It was placed in zimma of Amalendu Chowdhury, father of the appellant. The wife of the appellant met with an unnatural death as opined by the doctor (P.W. No. 17) and that too in the bed room of her matrimonial home. The bed room was shared by the appellant and the victim as husband and wife. It is evident from the evidence of P.W.1 to P.W.4 that the appellant had been to the house of the de facto complainant P.W.1 on 1.2.2004 at 8.30 a.m. and informed him that his wife has expired. Hearing such information they arrived at the house of the appellant and saw the dead body of the victim on the cot in the bedroom of the appellant. 20. Hearing such information they arrived at the house of the appellant and saw the dead body of the victim on the cot in the bedroom of the appellant. 20. The appellant has stated in course of his examination under Section 313 Cr. P.C. that he was present at the poultry farm of Gora Chand babu in his Pansuli village on the fateful night at 10 p.m. but refused to adduce any evidence on his behalf. P.W. No. 11 is Gora Chand Dey. He has stated in his evidence that he is the owner of Nandan Hatchery but does not know the appellant. He does not even remember whether he worked in his hatchery or not. 21. The appellant took a positive alibi that he was not in his house which consists of one room only having a door and two windows on the fateful night. The burden, therefore, shifts on him and Section 103 of the Indian Evidence Act, 1872 comes into operation. The appellant has failed to show that he was elsewhere on the fateful night. It is, therefore, within his special knowledge as to how his wife met with an unnatural death which is ante mortem and homicidal in nature in the bed room shared by him and his wife. The accused was under an obligation to prove that he was elsewhere. 22. Reference in this connection may be made to the decision of the Hon'ble Supreme Court in Trimukh Maruti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 wherein the Court observed :- "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 held 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 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 quite and offering no explanation on the supposed premises 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." 23. In view of the Hon'ble Supreme Courts decision, the evidence on record and the circumstances emerging, we find that the evidence on record irresistibly proceeds towards the appellant in proving his guilt regarding the murder of his helpless wife in the bed room of the matrimonial home. Therefore by invoking Section 106 of the Indian Evidence Act we hold that the appellant owed an explanation on the strength of his special knowledge and such explanation would lead the Court to draw an appropriate inference. 24. The appellant failed to discharge his obligation during his examination under Section 313 Cr. P.C. The appellant failed to explain the circumstances leading to the death of his wife. 25. It emerges from the evidence that the appellant had been to the house of the FIR maker and informed him about the death of his wife. That evidence has not been shaken by cross-examination. The dead body of the victim was found inside the bed room of the appellant. The said bed room has one door and two windows. There is no evidence on record that the door of the room was broken and the appellant after breaking open the said door found the dead body of his wife on the cot. Therefore, the only presumption that arises is that the appellant was inside the room, shared bed with his victim wife on the fateful night, murdered her by strangulation and came out from the room and thereafter gave information to the FIR maker about death of his wife. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was possibility of an outsider making entry into his bed room on the fateful night around 11p.m./12 a.m. to commit the offence. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was possibility of an outsider making entry into his bed room on the fateful night around 11p.m./12 a.m. to commit the offence. So it is for the husband to explain as to under what circumstances his wife met with an unnatural death, homicidal in nature. The homicidal death of the victim due to strangulation is beyond dispute and the same is ante mortem in nature. It clearly goes to show that she had been done to death by none else but her husband. 26. 1996 SCC (Cri) 59 (supra) : (1991) 1 SCC 286 (supra) was referred for the proposition of extra judicial confession. We have not considered the extra judicial confession of the appellant in this case. 27. Taking all these facts and circumstances together into account we have no hesitation but to opine that the evidence is consistent only with the hypothesis of the guilt of the appellant. We, therefore, concur with the finding of the learned Trial Court that the appellant committed the murder of his wife. 28. In the result, the judgment, order of conviction and sentence passed in Sessions Trial No. 1(12)/2004 arising out of Sessions Case No. 8(10)/2004 by learned Additional District and Sessions Judge, Fast Track Court, Bishnupur, Bankura is affirmed. 29. The appeal stands dismissed.