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2019 DIGILAW 518 (GAU)

Biswajit Sengupta v. State of Assam

2019-04-29

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. N. Dutta, learned senior counsel, assisted by Mr. N. Sarkar, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 23.03.2004 was lodged by the accused, Biswajit Sengupta before the Officer-In-Charge, Bongaigaon Sadar Police Station stating that in the night of 22.03.2004 his wife went to her bedroom along with their 1 1/2 years old son and closed the door from inside and committed suicide by hanging herself from a rafter of the house. Around 12 midnight, when he heard his son crying, he got up from the bed, which was from another room and on opening the door saw the incident and removed the rope from her neck with which she had hanged herself. Another ejahar dated 24.03.2004 was lodged by Akan Chandra Das, the brother of the deceased also before the Officer-In-Charge, Bongaigaon Police Station stating that his sister Shyamoli Sengupta was married with the accused for about 4 years and 3 months and a few days after the marriage, the accused person along with others started demanding money, vehicle etc., and also tortured her in different ways, as a result, they were occasionally compelled to give some articles to the accused. On 21.03.2004 also, the accused persons treated his sister in the same way and finally at around midnight they killed her. Accordingly the accused persons including the present appellant were charged of an offence under Section 304(B)/34 of the IPC by the charge dated 01.03.2007. 3. The charge also read that the deceased Shyamoli Sengupta died and the death was unnatural either homicidal or suicidal and before her death she was subjected to cruelty or harassment. 4. After the evidence of the PW-8, the doctor who had conducted the post mortem examination wherein the injury noticed was that the larynx and trachea were compressed by rope and the opinion led was that the death was due to asphyxia caused by ante mortem throttling/hanging, the charge was reframed on 10.03.2010 by bringing in Section 302/34 of the IPC and the offence stated was that the accused persons being her husband and other persons in furtherance of the common intention had committed the murder of the deceased Shyamoli Sengupta by strangulating her to death by her neck. 5. 5. By the Judgment and Order dated 01.09.2015, the learned Sessions Judge, Bongaigaon, acquitted all the accused persons, including the present appellant under Section 304(B)/34 IPC, but at the same time convicted the present appellant under Section 302 of the IPC. 6. The learned Sessions Judge had taken into consideration the following circumstances based upon the evidence on record to arrive at a conclusion that it was the appellant and none else who had caused the death of the deceased Shyamoli Sengupta and accordingly convicted him under Section 302 of the IPC. The circumstances are as follows: (i) On the night of the incident, the accused Biswajit and the deceased were sleeping together in their house along with their 1 1/2 years old child. (ii) Medical evidence shows that the death of the deceased was caused due to asphyxia by throttling/hanging. Sufficient force needed to be applied by assailant at the time of throttling. Since such force cannot be applied by 1 1/2 years old child present in the house, apart from the accused, there is strong possibility of the accused being the author of the throttling of his wife. (iii) Wherein accused and the deceased being husband and wife sleeping together in the same room on the night of occurrence, and when wife was found in a position unable to talk or dead, it is natural to presume husband's guilt in absence of any explanation given by the husband about the incident. 7. The second circumstance taken into consideration by the learned Sessions Judge was that the medical evidence showed that the death of the deceased was caused due to asphyxia by throttling/hanging and as sufficient force was applied by the assailant at the time of throttling and such force could not have applied by a 1 1/2 years old child present in the house apart from the accused, therefore, there is a strong possibility of the accused being the person who had throttled his wife. Although the medical evidence showed that the death of the deceased was caused due to asphyxia by throttling/hanging, the learned Sessions Judge without arriving at a definite conclusion as to why the cause of throttling was accepted while discarding the other cause that of hanging, took the view that the death was caused due to throttling. 8. Mr. Although the medical evidence showed that the death of the deceased was caused due to asphyxia by throttling/hanging, the learned Sessions Judge without arriving at a definite conclusion as to why the cause of throttling was accepted while discarding the other cause that of hanging, took the view that the death was caused due to throttling. 8. Mr. N. Dutta, learned senior counsel appearing for the appellant has taken us to the medical evidence which shows that there was a ligature mark in the front portion of the neck above the larynx. Mr. Dutta, learned senior counsel also relies upon the provisions in JB Mukherjee's Forensic Medicine and Toxicology Vol. I & II edited by RN Karmakar wherein it is shown that the typical hanging can either be complete or full hanging or it can also be a partial hanging. In the event of a partial hanging the death may be caused by asphyxia but as because the constricting force is the weight of the head and not of the body, the ligature mark that is likely to be caused would only be in the front part of the neck, which also may be moving a little upward towards the ears. 9. Ms. S. Jahan, learned Additional Public Prosecutor, Assam on the other hand contends that a ligature mark on the front portion of the neck running upto the ear can also indicate a strangulation by the assailant by using a rope from behind. For the purpose, the learned Additional Public Prosecutor relies upon the provision from a Medical Journal being Indian Acad Forensic Med Jan-Mar 2012, Vol. 34, No. 1 under the heading Pattern of Ligature Mark in Cases of Compressed Neck in Rajkot Region: A Prospective Study, which was quoted in the judgment of the Delhi High Court in Rehmatulla Vs. State bearing the citation (2016) CCR 139 (Del.) which is as follows: "A running noose can tighten at the time of suspension and may then produce a mark which takes a horizontal turn but it is likely to be above the thyroid cartilage. Ligature mark depends on the nature and position of the ligature used, and the time of suspension of body after death. If the ligature is soft, and the ligature removed immediately after death, there may be no mark. Ligature mark depends on the nature and position of the ligature used, and the time of suspension of body after death. If the ligature is soft, and the ligature removed immediately after death, there may be no mark. Again, the intervention of a thick and long beard or clothes on the neck leads to the formation of a slight mark. Sometimes, the pattern of the ligature material is impressed on the skin and a characteristic diagonal mark of the strands found when the rope is used. The wide band of cloth when used as a ligature on the bare skin may cause a narrow ligature mark, due to tension lines in the stretched cloth. The mark is a groove or furrow the base is pale, hard leathery and parchment like and margins are red and congested. Ecchymoses and slight abrasions in the groove are rare, but may be found in some cases for instance in judicial hanging. Usually only one mark is found. Multiple marks may be present due to multiple turns around the neck or upward displacement after application due to fall. The mark is usually situated above thyroid cartilage between larynx and the chin and is directed obliquely, upwards following the line of mandible and interrupted at the back or may show an irregular impression of a knot, reaching the mastoid processes behind the ears towards the point of suspension. The mark may be found on or below the thyroid cartilage, especially in case of partial hanging. It may be circular if a ligature is first placed at the nape of neck and then its two ends are brought horizontally forwards and crossed, and carried upwards to the point of suspension from behind the angle of the lower jaw on each side. The mark will be circular and oblique if a ligature is passed round the neck more than once. Near the position of the knot, it is like an inverted "V". In strangulation, ligature may be applied as one turn around the neck or even less, as homicide has been perpetrated by assailant pulling U shaped ligature against the front and sides of neck, while standing at the back. "The deceased in the tenanted room in the night intervening 17th-18th March, 2008. These facts manifest and bespeak. They remonstrate and negate death by hanging." 10. "The deceased in the tenanted room in the night intervening 17th-18th March, 2008. These facts manifest and bespeak. They remonstrate and negate death by hanging." 10. The learned Additional Public Prosecutor relies on the provision that in case of strangulation, ligature may be applied as one turn around the neck or even less, as the homicide was perpetrated by assailant by pulling an U shaped ligature against the front and sides of the neck while standing at the back, to substantiate that a homicidal act can also be committed in the manner indicated therein. 11. Against such contention, Mr. N. Dutta, learned senior counsel further relies upon the provisions in J.B. Mukherjee's Forensic Medicine and Toxicology Vol. I & II edited by R.N. Karmakar containing the typical difference between ante mortem hanging and postmortem suspension under the chapter Violent Asphyxial Deaths: Hanging. The said provision in a tabular form is as follows: Point Antemortem Hanging Postmortem Suspension 5. Parchmenstisation Ligature mark will look parchmentised brown, shown well after long period of suspension and use of tough ligature material Usually not so well marked, unless enough pressure was exerted on the ligature and it was allowed to dry up for a time. 12. From the said provisions, it is indicative that parchmentisation in the neck can be formed both in the case of ante mortem hanging as well as in the case of postmortem suspension. 13. In either view of the matter, a ligature mark in the front portion of the neck running towards the ears can be caused both as a result of hanging as well as, as a result of strangulation. If the interpretation of the medical evidence rendered by both the parties are accepted in the manner presented, we are in a situation, where in the instant case, it cannot be said with certainty as to whether the death of the victim was caused due to a homicidal act or it was due to suicidal act by the victim herself. Even the opinion of the PW-8 doctor who remained uncross-examined due to his untimely death before he could be subjected to cross-examination, shows that his opinion was that the death was caused by throttling/hanging meaning thereby that the medical evidence of the doctor is also unclear as to whether the death was caused by throttling or strangulation or it was caused by suicidal hanging. 14. 14. We have also taken note of that the accused had filed a prior ejahar on 23.03.2004 itself that the death of the deceased was caused due to suicidal hanging. In the absence of there being any further material on record to arrive at a definite conclusion as to whether the death was caused by a homicidal act of the assailant by strangulating the victim from behind as suggested by the learned Additional Public Prosecutor or due to suicide by hanging, we are of the view that it would be unsafe to arrive at a conclusion against the accused appellant that the death was caused to the deceased due to a homicidal act on the part of the appellant. 15. Criminal jurisprudence otherwise provides that when two views are possible on a given set of evidence, including the medical evidence, where one view goes in favour of the accused and the other against, in the matter of conviction, the view that goes in favour of the accused is to be accepted. 16. Further the other circumstance brought in by the learned Sessions Judge to arrive at a conclusion against the accused was that the accused and the deceased were sleeping together in their house along with their 1 1/2 years old child and as the death of the deceased had occurred at night when the two were sleeping together, it is natural to presume that in the absence of any explanation by the accused, it would be the accused alone who would be responsible for the death being caused to the deceased. To substantiate such conclusion, the learned Sessions Judge relies upon the statement under Section 313 Cr.P.C. of the accused wherein the accused stated as follows: "....At night, we had our meal together and then fell asleep. My mother and brother were not at home...." 17. As accepted in the judgment and also as contended by the learned Additional Public Prosecutor that the accused had given an explanation that at night they had their meal together and fell asleep, it is to be understood that both the accused and the deceased were sleeping together in the same room. On the other hand, Mr. As accepted in the judgment and also as contended by the learned Additional Public Prosecutor that the accused had given an explanation that at night they had their meal together and fell asleep, it is to be understood that both the accused and the deceased were sleeping together in the same room. On the other hand, Mr. N. Dutta, learned senior counsel seeks to contend the said statement of the accused made under Section 313 Cr.P.C., would mean that both the accused and the deceased had their meal together and the act of being together ended with taking of the meal and thereafter it is unclear as to whether they slept together or they slept in different rooms. 18. We further take note of that in the ejahar dated 23.03.2004 which is also exhibited as Ext. A and made a part of the record the accused had stated that after having supper, the deceased went to her bedroom along with her 1 1/2 years old son and closed the door from inside and thereafter committed suicide. 19. In this respect, we also take note of the deposition of PW-1, Rameswar Prasad, who happened to be a neighbour who had stated in cross that going to the place of occurrence, he had heard that the accused had slept in the room of his mother. We also take note of that many of the witnesses had also deposed that on the day of occurrence the mother and the brother of the accused had gone to Silchar, which lend credence to the version of the accused that he was not present in the same room as that of the deceased at the time when the occurrence took place and that he had slept in his mother's room. 20. As regards the aspect as to whether the accused was sleeping in the same room as that of the deceased at the time of the occurrence, we again arrive at a situation where the statement of the accused under Section 313 can also be looked from two different points of view as sought to be presented by the learned senior counsel for the appellant as well as by the learned Additional Public Prosecutor, of course, with further material from the ejahar lodged by the accused as well as the statement of PW-1 in cross that the accused may have been sleeping in different rooms. Again by following the same principle that if the given set of evidence reveals two alternative possibilities, one which goes against the accused and the other in favour of the prosecution, we are to accept the view which goes in favour of the accused and in a situation of uncertainty, it would be improper to convict the accused by adopting the view that may go against the accused. As it cannot be concluded with certainty as to whether the accused was sleeping in the same room as that of the deceased at the time when the occurrence took place, the further requirement that the accused would have to explain as to how death was caused to the deceased and the absence of any such explanation would lead to a presumption against the accused would be inapplicable in the present circumstance. From the said point of view also we are unable to accept the conclusion arrived at by the learned Sessions Judge that the absence of explanation by the accused would be sufficient to arrive at a conclusion against him that it is the accused who had committed the offence. 21. For the foregoing reasons, we cannot arrive at a conclusion that the chain of circumstances is so complete so as to hold that it is the accused alone who had committed a homicidal act of causing the death of the deceased and further that the prosecution could prove beyond all reasonable doubt that it is the accused alone who had caused a homicidal death of the deceased. Accordingly, the appeal stands allowed. 22. The judgment and order dated 01.09.2015 of the learned Sessions Judge, Bongaigaon in Sessions Case No. 75(BGN)/2006 convicting and sentencing the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs.5000/- in default to undergo rigorous imprisonment for another 3(three) months is accordingly set aside. 23. Bail bond stands discharged. 24. Send down the LCR.