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2020 DIGILAW 158 (CAL)

Dilip Bera v. State Of West Bengal

2020-02-07

ARIJIT BANERJEE, THOTTATHIL B.RADHAKRISHNAN

body2020
JUDGMENT Arijit Banerjee, J. - This is an appeal against the judgment and order dated 27.09.2010 and 28.09.2010 passed by the Learned Additional Sessions Judge, 4th Court, Alipore, South 24 Parganas in Sessions Trial No.2(12) 04 arising out of Sessions Case No.68(9) 04 convicting the appellant for commission of offences punishable under Sections 302/201 of the Indian Penal Code, 1860 (in short 'IPC') and sentencing him to suffer life imprisonment for commission of offence punishable under Section 302 IPC and to suffer rigorous imprisonment for three years and to pay a fine of Rs.3,000/-, in default to suffer further rigorous imprisonment for three months for commission of offence punishable under Section 201 IPC. All the sentences were directed to run concurrently. 2. The written complaint was filed on 04.07.2004 by one Mahadeb Mondal (P.W.1). The complaint was to the effect that his daughter Pratima Bera (Mondal) had got married with the appellant. After about one year of the marriage a contention regarding doing of household works arose and Pratima was subjected to mental torture. Village level arbitrations were held more than once to resolve the dispute. On 03.07.2004 at about 8 p.m. in the night the appellant and his two brothers viz., Pradip Bera and Sandip Bera beat up Pratima with a rod and subsequently strangulated her to death with a piece of cloth. Thereafter they poured kerosene on her body and tried to put fire on her. The villagers around noticed the incident and on arrival they found that different parts of Pratima's body had got burnt and discoloured. 3. The fact remains that Pratima ('the victim') died although the factum of death is not mentioned in the written complaint. The dead body of the victim was discovered in the morning of 04.07.2004 about 60 feet away from the house of the appellant on a paddy field of the appellant's father. The dead body was found in half burnt condition. Pursuant to investigation a Charge-sheet was issued charging the appellant and his two brothers Pradip and Sandip on the following three counts: "(i) That you, all since after day of marriage of Pratima Bera till 03.07.2004 at her matrimonial house at Vill. Chack Fuldebi within P.S. being the matrimonial relations subjected cruelties both physically and mentally upon her and thereby committed an offence punishable under Section 498A of the Indian Penal Code, and within the cognizance of this Court. Chack Fuldebi within P.S. being the matrimonial relations subjected cruelties both physically and mentally upon her and thereby committed an offence punishable under Section 498A of the Indian Penal Code, and within the cognizance of this Court. (ii) That you, along with others brothers within your common intention on 03.07.2004 at about 20-00 hours in your house at village Chack Fulbedi, P.S. Sagar committed murder by intentionally assaulting with iron rod which caused the death of Pratima Bera and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within the cognizance of this Court. (iii) That you, along with others viz. Pradip Bera and Sandip Bera in furtherance of your common intention on 03.07.2004 at about 20-00 hours at your house of village Chack Fuldebi, committed murder of Pratima Bera intentionally by assaulting her which is punishable with death or imprisonment of and fine and you thereafter hanged her on a tree by saree and (torn) Kerosene oil on her person and thereafter, set fire by straw to disappear the evidence of murder with intention of screening all of names as offenders from the legal punishment and thereby committed an offence punishable U/s.201 read with Section 34 of the Indian Penal Code, and within the cognizance of this court." 4. The charges were read over and explained to the accused persons to which all of them pleaded not guilty and claimed to be tried. Hence, the trial. 5. The prosecution examined 18 witnesses. The defence examined none. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure (in short 'Cr.P.C'). The case of the accused persons was one of complete denial. The Learned Trial Judge, primarily relying on the evidence of P.W.4, P.W.5, P.W.6 and P.W.13 held the appellant guilty of the charge under Sections 302/201 IPC. The other two accused persons were found not guilty of charges under Sections 498A/302/201/34 IPC and were acquitted. The Learned Trial Judge held, inter alia, as follows: "...but it is proved that accused Dilip Bera used to abuse and assault his wife Pratima Bera over her not being able to do huge domestic house hold work and there was no peace in the house. The Learned Trial Judge held, inter alia, as follows: "...but it is proved that accused Dilip Bera used to abuse and assault his wife Pratima Bera over her not being able to do huge domestic house hold work and there was no peace in the house. On the date of incident many persons heard the cry of a woman coming from the house of accused persons and they also saw flame of fire from near the house of accused persons. Parents and their covillagers came at the house of accused persons and stayed there in the night. On the next morning dead body of the wife of accused Dilip Bera was recovered from a place merely at a distance of 60 feet away from the house of accused persons. Police found severe injuries and burnt injuries over the dead body of Pratima Bera while conducting inquest over her dead body. Husband of Pratima Bera or other relatives of Pratima Bera from her matrimonial home neither made any missing dairy after she was untraced nor lodged F.I.R after having found the dead body of Pratima Bera being brutally murdered and burnt. ................................... ...the Doctor conducting post mortem examination after examination of the dead body of Pratima Bera opined that the death was due to the effects of injuries anti mortem and homicidal in nature proving that Pratima Bera was brutally murdered and thereafter attempted to be burned so as to disappear the evidence of murder. It is also proved that the injuries sustained by Pratima Bera was of such dimension and nature that she must have shouted begging for her life or seeking help from a distance of mere 60 feet away from the house of the accused persons but none of the family members heard it as if it was a family of deaf and dumb. It is further proved that the accused Dilip Bera used to abuse and assault Pratima Bera over the issue of domestic household work. The chain of circumstances leading to the guilt of the husband of deceased Pratima Bera is so complete as to exclude any hypothesis other than his guilt. Circumstantial evidences conclusively proves that accused Dilip Bera brutally murdered his wife Pratima Bera and attempted to disappear the evidence of murder by burning her dead body unsuccessfully to screen himself from legal punishment. Circumstantial evidences conclusively proves that accused Dilip Bera brutally murdered his wife Pratima Bera and attempted to disappear the evidence of murder by burning her dead body unsuccessfully to screen himself from legal punishment. In view of the evidence on record, I am also of the opinion that accused Pradip Bera and Sandip Bera must have helped their brother in the whole process of murder and attempt to disappear the dead body of Pratima Bera but this is strong suspicion only and therefore, accused Pradip Bera and Sandip Bera are entitled to the benefit of doubt." Sustainability of the said judgment and order of conviction of the appellant falls for determination in this appeal. 6. Let us consider the evidence of the key witnesses. There is no eye witness to the alleged incident. The entire prosecution case and the order of conviction is based on circumstantial evidence. 7. P.W.1 is the father of the victim. He has stated in his evidence that there was marital discord between the appellant and the victim. Each time the victim went to her paternal home, she was reluctant to return to her matrimonial home since she was asked to do heavy household work. The victim was of emotional character. The accused persons used to misbehave with the victim. P.W.1 was informed about the death of his daughter at 9/9:30 p.m. on the date of the incident, whereupon he along with four of his neighbours went to her daughter's matrimonial home and found the dead body of the victim in half burnt condition. After that they left the place and reported the incident to Sagar Police Station on the following day. 8. P.W.2 is the mother of the victim. She stated that she found the victim's dead body near the house of the accused persons with burn injury and other injuries on the body in the night of 03.07.2004. The police went to the spot next morning at about 8/9 a.m. She admitted that the victim was a woman of hot temper and was obstinate. However, she denied that the victim did not want to return to her matrimonial home when she went to visit her parents. 9. P.W.4 appears to be related to the appellant. He deposed that he works in a 'Pan Boroj'. However, she denied that the victim did not want to return to her matrimonial home when she went to visit her parents. 9. P.W.4 appears to be related to the appellant. He deposed that he works in a 'Pan Boroj'. On 03.07.2004 he was going to the 'Pan Boroj' from his house at about 7/7:30 p.m. On his way, he heard crying of a woman on the side of the house of the accused Dilip. He further deposed: "I then went to 'Boroj' thinking it was family matter of the accused. After that I was coming back through that way towards my house after working in my 'Pan Boroj'. I found, on my way, that there was fire on the north-west corner of the house of the accused person near the side of 'Pan Boroj' of accused persons. I also found on the place, where there was firing, that the accused Dilip Bera, Pradip Bera and Sandip Bera were loitering there at that place. I then left the place thinking many garbage was being fired. On the next morning, I came to the house of the accused persons seeing many persons there. I also found the dead body on burning condition was lying on that place where there was fire. Police came and arrested the accused persons." In his cross-examination he stated that there were many cases, both civil and criminal, pending between his family and the family of the accused persons in connection with landed property. He further stated that he went to the house of the accused persons on 04.07.2004 at about 6 a.m. At that time there was no police there. The police arrived at about 9 a.m. The police recorded his statement at the place where the dead body was lying. He had narrated the incident to the police. 10. P.W.5 is a resident of the village where the appellant resided. She deposed: "I found a flame of fire on the north-west corner of the house of the accused Dilip Bera at a Paddy field near 'Pan Boroj'. I found 2/3 persons loitering there. I could not recognize them. He had narrated the incident to the police. 10. P.W.5 is a resident of the village where the appellant resided. She deposed: "I found a flame of fire on the north-west corner of the house of the accused Dilip Bera at a Paddy field near 'Pan Boroj'. I found 2/3 persons loitering there. I could not recognize them. On the following day, I found that there was a gathering at the said spot and also the dead body of Pratima....I found injuries and burn injuries on the person of Pratima and her neck was tied with a cloth." In cross-examination, she stated that she was the leader of Sramajibi Mahila Samity and Paschim Banga Khet Majur Samity. She was looking after the case on behalf of the Mahila Samity. They had filed applications before the Trial Court as well before the High Court on behalf of the Mahila Samity to bring one Kakali Halder as a witness in connection with the case. 11. P.W.6 is also a co-villager. He stated, inter alia, as follows: "...It is 1/2 k.m. distance from my house to the house of the accused.... I found flame of fire near the house of the accused while I was coming back from market on that date. On the following morning I found the dead body of Pratima in partly burnt condition on the paddy field near the house of accused...." In cross-examination he stated: "I know the witness Pravash Bera (P.W.4). His house is at a long distance from the house of the accused. The 'Pan Boroj' of Pravash is also at a long distance from the house of the accused persons. There is no way to the 'Pan Boroj' of Pravash by the side of the house of the accused.... I met police at about 10 a.m. on 04.07.2004 in the house of Dilip.... I did not state to any place except today before this court that I found flame of fire while I was returning from market on 03.07.2004...". 12. P.W.7 and P.W.8 are both related to the appellant. They were both declared hostile. In cross-examination by the defence, P.W.8 stated: "Pratima used to leave her matrimonial home without giving any intimation to anyone. Pratima left her matrimonial home on the date when her dead body was found without giving any intimation to anyone of her matrimonial home. 12. P.W.7 and P.W.8 are both related to the appellant. They were both declared hostile. In cross-examination by the defence, P.W.8 stated: "Pratima used to leave her matrimonial home without giving any intimation to anyone. Pratima left her matrimonial home on the date when her dead body was found without giving any intimation to anyone of her matrimonial home. At that time, the accused persons were at Chakphuldebi market." 13. The deposition of P.W.9 to P.W.12 is not of much consequence. P.W.13 is also a co-villager. In his examination-in-chief he stated, inter alia, as follows: "The incident took place on 03.07.2004. On that day I had been to Berapara at about 7 p.m. When I was passing through the side of the house of Hrishikesh Bera (father of the appellant) I heard sound of female voice from that house. I left the place but when I was coming back at about 8 p.m.. I found fire behind the house of Hrishikesh Bera.... From the flame of the said fire, I found that Dilip Bera, Pradip Bera and Sandip Bera were moving.... Thereafter, I came back to my house. On the following morning I heard that the wife of Dilip Bera viz., Pratima Bera was murdered. Hearing the same I had been near the house of Hrishikesh Bera. Going there I found the dead body of Pratima lying at Albadh of the field in half burnt condition and the neck was tied with a cloth...." In his cross-examination, he stated, inter alia, as follows: "It is a fact that I am a leader of Trinamul Congress. It is a fact that in the Panchayat election of 2003 I was defeated by the CPI (M) candidate Shoharab Shah.... It is a fact that the accused persons are not follower of Trinamul party (then says Pradip Bera is a follower of Trinamul Congress). It is a fact that the accused persons are rival to our party politically...." It was suggested to him that because of political rivalry with the accused persons, he was deposing falsely which suggestion he denied. 14. P.W.14 is also a co-villager. He deposed that after the death of Pratima he had been to the house of Dilip Bera in the morning. She was found lying in a place where there were some trees and grasses. There was cloth wrapped on her neck. 14. P.W.14 is also a co-villager. He deposed that after the death of Pratima he had been to the house of Dilip Bera in the morning. She was found lying in a place where there were some trees and grasses. There was cloth wrapped on her neck. He did not found any mark of injury. He was declared hostile. In cross-examination by the defence, he stated, inter alia, as follows: "I know Pravash Bera (P.W.4). I know that he has a 'Pan Boroj' in the field. It is not necessary to go through the side of the house of Dilip Bera to reach the 'Pan Boroj' from the house of Pravash Bera. I know Saroj Bera (P.W.6) and Ashalata Das (P.W.5). There is no road by the side of the house of Dilip to go to the market from the house of Ashalata and Saroj. On the previous day of my going to see the dead body, I found Dilip to play cards sitting in the market viz., Chakphuldebi market at about 7 p.m." 15. P.W.16 is the doctor who conducted post mortem examination on the dead body of the victim. From the Post Mortem report that he prepared and proved in Court, it appears that he noted several injuries on the body of the victim. It was also noted in the post mortem report that the victim was 38 kgs. in weight. When the dead body was produced before the Doctor, the eyes of the victim were found to be bulging out and the tongue protruded. He also noted in the Post Mortem report that there were post mortem burn injuries present in the left ear, left side of chest including breast, left side of abdomen, right side of neck, right shoulder and right parietal region of the head. Opinion of the doctor as noted in the report is that death was "due to the effects of injuries as noted above, anti-mortem and homicidal in nature. Further opinion will be given after receipt of chemical examiner's report." 16. P.W.18 is the Investing Officer. He proved the FSL report which was merely to the effect that no poison could be indicated either in the viscera or in the sample blood of the deceased. In his cross-examination he stated that P.W.6 did not state before him that he found the flame of fire when he was coming back from market. 17. He proved the FSL report which was merely to the effect that no poison could be indicated either in the viscera or in the sample blood of the deceased. In his cross-examination he stated that P.W.6 did not state before him that he found the flame of fire when he was coming back from market. 17. We have given our anxious consideration to the facts of the case and the evidence on record. We have also carefully read the judgment and order of conviction that is before us. 18. The order of conviction is based on circumstantial evidence. Admittedly there are no eye witnesses. The Learned Trial Judge has opined that upon appreciation of the prosecution evidence it is found that the chain of circumstances is so complete as to indubitably point towards the guilt of the accused. According to him, no other hypothesis except one consistent with the guilt of the accused can be conceived of. 19. We are unable to agree with the decision of the Learned Trial Judge for the reasons indicated hereinafter. 20. To start with, there are unexplained inconsistencies in the evidence of the various prosecution witnesses. The evidence of P.W.1 (father of the victim) and P.W.2 (mother of the victim) are really of no consequence. They were not present anywhere near the place of occurrence. Whatever they have stated in their deposition concerning the guilt of the appellant is hearsay and naturally cannot be relied upon. Further, while P.W.1 stated that each time the victim went to the paternal house, she was reluctant to return to her matrimonial home, P.W.2 has denied the same. P.W.2 stated in her evidence that the victim was a woman of hot temper and was obstinate. This would tend to support the statement of P.W.8 that the victim used to leave the matrimonial home without informing anybody and on the date of the alleged incident also she had left the matrimonial home without any intimation to anyone present in the matrimonial home. 21. The evidence of P.W.4 and that of P.W.14 are contradictory. According to P.W.4 he heard crying of a woman on the side of the house of the appellant at about 7/7:30 p.m. on 03.07.2004 when he was going to the 'Pan Boroj' from his house. 21. The evidence of P.W.4 and that of P.W.14 are contradictory. According to P.W.4 he heard crying of a woman on the side of the house of the appellant at about 7/7:30 p.m. on 03.07.2004 when he was going to the 'Pan Boroj' from his house. He also stated that while returning to his home through the same way he found fire on the north-west corner of the house of the appellant and he saw the appellant and his two brothers were loitering there. However, according to P.W.14, to go from the house of P.W.4 to his 'Pan Boroj' it is not necessary to cross the house of the appellant. Moreover, P.W.6 in his evidence has stated that there is no way to the 'Pan Boroj' of Pravash (P.W.4) by the side of the house of the appellant. This apart, P.W.4 has admitted that several cases, civil and criminal, are pending between his family and the family of the appellant. This makes a serious dent in the credibility of P.W.4. He is by no means a disinterested or an independent witness. 22. P.W.5 claims to have found a flame of fire on the north-west corner of the appellant's house. She does not state from what distance she saw the fire or where she was at the time when she saw the fire. She claims to have seen 2/3 persons loitering near the fire but could not recognize them. It also comes out in her evidence that she was the leader of a Mahila Samity and Khet Majur Samity and was looking after the case against the appellant on behalf of the Mahila Samity. Hence, she cannot also be considered to be a disinterested or independent witness. 23. P.W.6 claims to have found a flame of fire near the house of the appellant while returning from market on the date of the incident. However, P.W.14 in his evidence stated that there is no road by the side of the house of the appellant to go to the market from the house of Saroj (P.W.6). Further, according to P.W.6 as also P.W.18, P.W.6 did not state before the Investigating Officer (P.W.18) that he found flame of fire by the side of the house of the appellant while he was coming back from the market. Further, according to P.W.6 as also P.W.18, P.W.6 did not state before the Investigating Officer (P.W.18) that he found flame of fire by the side of the house of the appellant while he was coming back from the market. It is quite surprising and difficult to believe that had he really come across such an unusual scene, he would not have mentioned the same to the Investing Officer. 24. The evidence of P.W.13 also is difficult to accept. He claims to have heard a female voice coming from the house of the appellant at around 7 p.m. when he was coming to Bera para. He also claims to have found fire behind the house of the appellant when he was returning at about 8 p.m. and claims to have seen the appellant and his two brothers moving around there. It is again unusual that having seen such alleged suspicious circumstances, he would quietly return home without making any enquiry about the same. It has come out in his cross-examination that there is political rivalry between him and the accused persons. We may take judicial notice of the fact that in the villages of Bengal, political rivalry assumes monumental proportions and gives rise to extreme acrimony between members of different rival political parties. So much so, that a member of one political party can go to any extent to ensure that a member of a rival party lands in trouble. We cannot rule out that P.W.13 was not speaking the truth while deposing in Court with the object of inculpating the appellant. 25. On an overall assessment of the evidence on record and the totality of the facts and circumstances of the case emanating therefrom we are of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt that the appellant has committed the offence that he is charged with. It is strange that the two brothers of the appellant who were co-accused were acquitted of all the charges on the same set of evidence. The charge under Section 34 IPC was of complicity. While observing that his two brothers 'must have helped their brother in the whole process of murder and attempted to disappear the dead body of Pratima Bera', the Learned Judge acquitted the brothers of the appellant but convicted the appellant. The charge under Section 34 IPC was of complicity. While observing that his two brothers 'must have helped their brother in the whole process of murder and attempted to disappear the dead body of Pratima Bera', the Learned Judge acquitted the brothers of the appellant but convicted the appellant. We are not for a moment suggesting that the acquittal of the two brothers is bad since such acquittal is not under challenge. However, what surprises us is that we find no material on record which would indicate that the appellant stood on a different footing compared to his brothers. 26. There is another angle from which if we look at the matter, we find that it is improbable that the appellant committed the alleged offence alone. With the acquittal of the other two accused persons, the charge under Section 34 IPC goes. The Charge-sheet is, inter alia, to the effect that after murdering the victim, the offender(s) hung her on a tree by saree. This however is contradicted by the fact that the post mortem doctor recorded in his report that the eye balls of the victim were bulging out and the tongue was protruded. The tongue would protrude out and the eye balls would bulge out generally only if a living person is hung from a tree or is otherwise throttled. This would not normally happen if a dead body is hung from a tree. Hence, it is more probable than not that the victim, while alive, was hung from a tree or was otherwise stifled. We note from the post mortem report that the victim was 38 kgs in weight. Would it be possible for the appellant alone to hang the victim while she was alive from a tree? In our opinion, that is highly improbable if not impossible. To hang a 38kgs. heavy person singlehandedly when that person would surely be resisting and fighting for her life, is not something which can easily be achieved. The aforesaid facts also create a lurking doubt in our mind as regards the guilt of the appellant. We may also finally note that the appellant has not been held guilty of offence punishable under Section 498A IPC. Then what was the motive of the appellant in murdering the victim? We find no satisfactory answer. The aforesaid facts also create a lurking doubt in our mind as regards the guilt of the appellant. We may also finally note that the appellant has not been held guilty of offence punishable under Section 498A IPC. Then what was the motive of the appellant in murdering the victim? We find no satisfactory answer. Although the law is not that an accused can be held guilty of a charge under Section 302 IPC only if motive is established, in certain circumstances, the issue of motive or its absence assumes importance and this is such a case. 27. Keeping in mind the salutary principle of criminal jurisprudence that the prosecution has to establish the charge brought against an accused beyond reasonable doubt, we are unable to agree with the judgment and order of the Learned Trial Judge. On an overall consideration of the totality of facts and the evidence adduced by the prosecution, in our opinion, it would not be safe to hold the appellant guilty of the charges brought against him. The circumstantial evidence relied upon by the Learned Trial Judge, in our assessment, falls short of the requirement in law to refer a finding of guilt against the appellant without any doubt whatsoever. The fact that all the accused persons have been exonerated of the charge of cruelty under Section 498A IPC and that the two co-accused persons who allegedly had assisted the appellant in committing the crime have been fully acquitted by the Court below of all the charges, also take away the wind from the sails of the prosecution (please see Jose Alias Pappachan v. Sub-Inspector of Police, Koyilandy & Anr., (2016) 10 SCC 519 ) . 28. In the result the appeal succeeds. The judgment and order of conviction of the appellant is set aside. The appellant shall be forthwith released unless he is wanted in custody in connection with some other case. Let the records of this case be sent back to the Learned Trial Court immediately for necessary orders being passed by the Learned Trial Judge. 29. Cra 683 of 2010 is accordingly disposed of. 30. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree