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2020 DIGILAW 99 (CAL)

Dhenu Murmu v. State Of West Bengal

2020-01-24

ARIJIT BANERJEE, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT Arijit Banerjee, J. - This criminal appeal arises out of the judgment and order of conviction dated 11.10.2004 and 12.10.2004 passed by the Learned Additional Sessions Judge, Fast Track 2nd Court, Islampur, Uttar Dinajpur in Sessions Trial No. 15/04 arising out of Sessions Case No. 27/03. The Learned Trial Court convicted the accused/ appellant herein under Section 302 of Indian Penal Code, 1860, for murdering his sister-in-law one Sunita Tudu and a child of 15 weeks that she was carrying in her womb during her pregnancy. The Trial Court found the appellant guilty and sentenced the appellant to imprisonment for life and imposed a fine of Rs. 10,000/- and in default to further suffer simple imprisonment for one year. 2. The brief facts of the case are that the father of the appellant vis Mondal Murmu had four children, three sons viz Bijoy Murmu, Som Murmu and the appellant and one daughter named Lakhi Murmu. Bijoy Murmu was married to the victim Sunita and they resided in a separate house. The appellant, his father and his other siblings stayed in another house adjacent thereto. The two houses shared a common courtyard. 3. The case of the prosecution as would appear from the written complaint lodged by a local resident named Mose Hembram is that at about 10:00 a.m. on 12.07.2002 the father of the appellant went to the Sarat Tea Estate and told the people working there that his son (the appellant) had killed his daughter-in-law (Sunita) in Sunita's house by a sharp cutting weapon. On hearing this, the victim's husband Bijoy tried to commit suicide by trying to throttle himself with a rope. 4. The accused was apprehended from Jagir Basti under P.S. Puthia, Bihar by Som Hembram (PW7) and Mongal Hembram (PW8) at about 3 PM and then he was handed over to the Chopra police station. After investigation, the accused was charge-sheeted under Section 302 IPC. The charge was read out and explained to him. He pleaded not guilty and claimed to be tried. Hence, the trial. 5. There are no eye witnesses to the incident. The entire prosecution case is based on circumstantial evidence. The prosecution examined eleven witnesses to prove its case. The defence did not examine any witness. The accused was examined under Section 313 Cr.P.C. The defence case is one of denial. 6. Hence, the trial. 5. There are no eye witnesses to the incident. The entire prosecution case is based on circumstantial evidence. The prosecution examined eleven witnesses to prove its case. The defence did not examine any witness. The accused was examined under Section 313 Cr.P.C. The defence case is one of denial. 6. The Learned Trial Judge analysed the evidence on record and held that "every pieces of circumstances as appear from the prosecution evidence unmistakably and unerringly indicate that the accused of this case had the opportunity to murder Sunita, he had a strong motive to commit the crime, that the deceased met with an homicidal death, that the information of such homicidal death was reported to the P.S. immediately after the occurrence and the circumstances formed a complete chain leading to the allegation of murder. In the present case the incriminating circumstances as appeared from the prosecution evidence unmistakably and inevitably lead only to the guilt of the accused and none else. The circumstances established in this case complete the chain of the circumstances to prove that accused Dhenu is the perpetrator of the crime and the hero behind the criminal act of murder". Accordingly, the Learned Trial Judge held the accused guilty of offence punishable under Section 302 IPC and convicted him. It is this conclusion of the Learned Trial Judge which falls for scrutiny in the present appeal. 7. Before expressing our opinion it would be helpful to briefly go through the evidence of the prosecution witnesses. 8. P.W.1 Mose Hembram is a local resident of the Village where the accused resided. It was he who had lodged the written complaint. He is also the morol (leader) of his village. According to him on the date of the incident he went to the Sarat Tea Estate located at Daduagacch. Then suddenly Mondal Murmu the father of the accused, who was a nonagenarian as well as partially blind and crippled, went there and informed him and others present there that his son had killed the victim (Sunita) and she was lying dead in the house. The Manager of the Estate Mr. Gupta was also present. On hearing this news Som Hembram (P.W.7) and Mongal Hembram (P.W.8) went looking for the accused. Thereafter the accused was apprehended on the same day and was handed over to the local police. The Manager of the Estate Mr. Gupta was also present. On hearing this news Som Hembram (P.W.7) and Mongal Hembram (P.W.8) went looking for the accused. Thereafter the accused was apprehended on the same day and was handed over to the local police. PW1 himself then went to the place of occurrence (P.O.) and saw the body of Sunita lying in her house. He further deposed that during the trial the father of the accused died while his sister Lakhi was missing for one and half years. He further deposed that P.W.7 and P.W.8 stated to him that the accused had confessed his crime to them. During the investigation he was not interrogated by the police. He has also stated that he does not recollect as to who was the scribe of the complaint and if the same was read over to him. 9. P.W.2 Som Murmu is the brother of the accused. In his deposition, he stated that on the date of the incident he along with others was working at the tea estate. It was around 11 a.m. when his father Mondal Murmu went to the tea estate and informed him and others that the accused had killed the victim (Sunita) who was his sister-in-law and had then fled. He also stated that Som Hembram (P.W.7) and Mongal Hembram (P.W.8) rushed towards Bihar in search of the accused. The Manager of the Estate Mr. Gupta was also present when the incident was narrated by Mondal Murmu. He along with the others then proceeded to the police station. He saw that the accused had been handed over by P.W.7 and PW8 to the police. According to him, there was a blood stain on his lungi and a Kalam Chhuri (penknife) was also in his hands. On that very day he along with others went to the house of his sister-in-law (the victim Sunita) and saw her lying dead in the courtyard of the house. At that time Ganga, Pohoru, Mohon Tudu, Bersha Oraw, Baleshwar Tudu and Dhuma were also present. His brother, the husband of the victim (Bijoy) tried to commit suicide. He was taken to the hospital by the people around. He had also put his LTI on the complaint that was submitted to the police. This witness has denied the suggestion of lying and misleading the court so as to appropriate his brother's share of the land. His brother, the husband of the victim (Bijoy) tried to commit suicide. He was taken to the hospital by the people around. He had also put his LTI on the complaint that was submitted to the police. This witness has denied the suggestion of lying and misleading the court so as to appropriate his brother's share of the land. 10. P.W.3 is Sahib Murmu. He is a co-villager of the accused. In his deposition he stated that on the date of the incident, he had heard from the Manager of the Estate Mr. Gupta that the accused had killed his sister-inlaw. On reaching the P.O. he saw the victim lying dead in the house of (Bijoy) the husband of the victim. He stated that the police seized one glass, bowl, and one blood stained gunny bag in his presence, and he put his signature on the seizure list. He deposed that P.W.7 and P.W.8 informed him about the accused confessing his guilt to them. 11. P.W.4 Kailu Hembram is a co-villager. According to his deposition, on the day of the incident, he was present at the tea estate and he heard from the manager about the murder of the victim (Sunita). Thereafter, he rushed to the P.O. There he found the victim lying dead in a room with cut injuries on her throat and injuries on her hand. He also noticed a blood-stained pot and a gunny bag lying by her side. He stated that Lakhi, the sister of the accused, informed him that the accused was the one who had killed her. He deposed that P.W.7 and P.W.8 were the ones who caught the accused and brought him to the police station. At the time, he noticed a gamcha and lungi of the accused with blood stains on it and a blood-stained kalam churi in his hands. 12. P.W.5, Chaton Singh, is a co-villager and a member of the Panchayat. He claims to have been informed about the murder by Mose Hembram (P.W.1). Thereafter, he went to the P.O. and saw the victim lying in a pool of blood. He stated that the sister of the accused, Lakhi informed him about the incident. He also signed on the inquest report prepared by the police. He has identified his signature in court. According to him, the police had seized a metal pot, plate and a gunny bag. 13. He stated that the sister of the accused, Lakhi informed him about the incident. He also signed on the inquest report prepared by the police. He has identified his signature in court. According to him, the police had seized a metal pot, plate and a gunny bag. 13. P.W.6, Ganga Oraw, is a local resident. His deposition is that on the day of the incident the father of the accused had gone to the tea estate at about 10 in the morning and informed him about the incident. On hearing this news, he rushed to the spot and found the victim (Sunita) dead. There were cut injuries on the throat and hand of the victim. At the P.O., it was Lakhi, the sister of the accused, who informed him that it was the accused himself who killed her and fled. As many as 40/45 persons were present at the P.O. 14. P.W.7, Som Hembram, is a local villager. According to him, on the date of incident, he was present at the tea estate and that is when the father of the accused went to the tea estate and informed him and others present there that the accused had killed the victim and had fled. He was one of the witnesses who went to a place named Jagirgacch, which is in Bihar and nabbed the accused. According to him, when the accused was caught, he was still armed with the kalam churi that is said to have been used in the incident. He stated that the accused confessed to his crime before him and the other villagers. He does not remember who else were present there when the said confession was made. It was this witness who brought the accused to the police station from where he was hiding. It is his statement that mentions the police seizing a blue shirt, a towel and a kalam churi from the accused. He had noticed blood stain on the towel of the accused. He has stated that when he heard of the incident from the manager of the tea estate, there were 40/50 people along with him. When he reached the place from where he had nabbed the accused, the accused was near the railway track. At least 100 people of that village helped him to nab the accused. He has stated that when he heard of the incident from the manager of the tea estate, there were 40/50 people along with him. When he reached the place from where he had nabbed the accused, the accused was near the railway track. At least 100 people of that village helped him to nab the accused. This witness also submitted a written complaint after bringing the accused to the police station. This complaint was subsequent to the complaint filed by PW1. He identified his signature when produced in court. 15. P.W.8, Mongal Hembram, is also a co-villager. His statement is that on the day of the incident the father of the accused went to the estate and reported to the manager about the incident. It was the manager who informed them about what had happened and asked them to go to the P.O. He went to Jagir Basti with P.W.7 and apprehended the accused. According to him, the accused was coming towards his matrimonial home and had blood stains on his apparel. Thereafter, the villagers helped tie the hands of the accused and P.W.8 along with P.W.7 took the accused to the Chopra police station. The accused still had a kalam churi in his hand. PW8 in his deposition stated that the shirt of the accused was stained with blood. His statement is that the police seized the blue shirt of the accused, a towel and the kalam churi in his presence. He also affixed his LTI on the seizure report. By the statement of this witness, it appears that the mother-in-law and some children were also present when the accused was nabbed by them. 16. P.W.9, Ashit Kumar Pandey is the officer-in-charge of the Chopra Police Station. According to him, Mose Hembram (P.W.1), was the one who came forward and lodged a written complaint. This was scripted by Kalyan Sarkar and Sunil Goswami, Moharrars of Chopra. According to him, P.W.7 and P.W.8 were the ones who handed over the accused to the police. He reported that P.W.7 and PW8 claimed that the accused had confessed his crime before them. Thereafter he advised the I.O. of the case to make a prayer before the court for recording the confessional statement of the accused under Section 164 of the Code of Criminal Procedure, 1973 ('Code', for short). 17. He reported that P.W.7 and PW8 claimed that the accused had confessed his crime before them. Thereafter he advised the I.O. of the case to make a prayer before the court for recording the confessional statement of the accused under Section 164 of the Code of Criminal Procedure, 1973 ('Code', for short). 17. P.W.10 is Shri Narayan Chandra Paul, the doctor who examined the dead body of Sunita. On dissection, he found the following injuries:- a) One incised wound 1" x 1/4" x fascia depth of the thumb. b) One incised wound 1" x 1/4" and fascia depth over right shoulder. c) Multiple small incised wound superficial lower part of neck. d) Two incised wounds 1" x 1/4" fascia depth over back of lower shoulder. e) Two large incised wounds on right side of neck mid-line to back transversely situated- 2 injuries are parallel to each other on the middle of the neck cutting large vessel right side along with other soft tissues. f) One incised wound in front of left ear 1" x 1/4" x fascia depth on face." This witness has identified his signature appearing on the postmortem report. He has also stated that the injuries may have been caused by a sharp-cutting weapon and that the injuries so caused were sufficient in the ordinary course of nature to cause death. 18. P.W.11 is the IO of the case. His name is Mr. Arun Chowdhury. He continued the investigation of the case, prepared the rough sketch map of the P.O. with index and affixed his signature thereon. He held the inquest over the dead body of Sunita and signed it. From the P.O., he seized one blood-stained gunny bag, one steel bowl with bloodstain, one blood-stained steel plate, some blood-stained earth and some plain earth. He also examined the witnesses and recorded their statements under Section 161 Code of Criminal Procedure and despatched the dead body to the hospital. He recorded the statements of P.W.7 and PW8 who had brought the accused to the police station. According to P.W.11, the accused had confessed his guilt. He had also seized one blood-stained shirt, towel and one iron-made kalam churi which was discovered with the accused. Thereafter, the same was sent to R.F.S.L. at Jalpaiguri. He also made a separate seizure list of the blood-stained apparel of the deceased. According to P.W.11, the accused had confessed his guilt. He had also seized one blood-stained shirt, towel and one iron-made kalam churi which was discovered with the accused. Thereafter, the same was sent to R.F.S.L. at Jalpaiguri. He also made a separate seizure list of the blood-stained apparel of the deceased. He stated that the accused's sister Lakhi had told him that it was the accused that had killed Sunita. 19. We have given our anxious consideration to the facts of the case and the evidence on record. Admittedly no evidence has been adduced by any eye witness. Allegedly the father of the accused and the sister of the accused were eye witnesses. However, the father died before the trial commenced. The sister went missing before she could be produced as a witness by the prosecution. Nobody saw the accused committing the murder. The entire prosecution case is based on circumstantial evidence which has been accepted by the Learned Trial Judge. The question is how far the Learned Trial Judge was justified in convicting the accused on the basis of circumstantial evidence? 20. We have carefully gone through the judgment of the Learned Trial Judge. It is a detailed and well reasoned judgment. It is true that the forensic report regarding the apparel of the victim as well as the accused as well as the report regarding kalam churi (pen knife) stated to be the offending weapon, takes us nowhere. In this connection the Learned Judge recorded as follows: "The serologist opined that the blood group of fullshirt and cloth covered handle of kalam churi couldn't be detected as the sample wasn't sufficient for test. The blood group found on the saree and kalam churi couldn't be detected as the same was disintegrated. It is a fact that the group of blood found in the full-shirt, saree, kalam churi and cloth covered of handle of kalam churi couldn't be detected. But there is sufficient explanation from the side of serologist in this regard. Ext-9 disclosed that a blue striped shirt was seized from the possession of the accused which he was wearing at the time of incident and according to Ext-13 and Ext-5 human blood was found upon the said shirt." 21. But there is sufficient explanation from the side of serologist in this regard. Ext-9 disclosed that a blue striped shirt was seized from the possession of the accused which he was wearing at the time of incident and according to Ext-13 and Ext-5 human blood was found upon the said shirt." 21. The accused did not offer any explanation regarding the blood that was found on the shirt that he was wearing or on the pen-knife that was in his possession when he was apprehended. It was urged on behalf of the appellant that the accused is not required to explain anything. The prosecution must prove through cogent evidence beyond reasonable doubt that it was the accused and nobody else who committed the offence that he is charged with. Reliance was placed on Article 20(3) of the Constitution of India which states that no person accused of any offence shall be compelled to be a witness against himself. It was also urged that there is a conflict between Section 106 of the Evidence Act and Article 20(3) of the Constitution of India and the latter must prevail over the former. To that extent Section 106 of the Evidence Act must be held to have been watered down. 22. We are unable to agree. The Learned Trial Judge relied on Section 106 of the Evidence Act and in our view correctly so. What that Section says is that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. We are of the considered view that the accused was under an obligation to explain the blood stain on the shirt that he was wearing at the time he was nabbed by P.W.7 and P.W.8 and others and also his possession of the pen knife with blood stain on it. He chose to offer no explanation at all. In such circumstances, justifiably an adverse inference can be drawn against the accused as the Learned Trial Judge has done. 23. In our view, there is no conflict between Article 20(3) of the Constitution and Section 106 of the Evidence Act. Article 20(3) enshrines the fundamental right of a citizen not to incriminate himself by being compelled to be a witness against himself. This does not absolve the accused of the obligation to offer an explanation regarding an incident of which he has special knowledge. Article 20(3) enshrines the fundamental right of a citizen not to incriminate himself by being compelled to be a witness against himself. This does not absolve the accused of the obligation to offer an explanation regarding an incident of which he has special knowledge. If an incident or a particular circumstance is such that he and only he can throw light on it, Section 106 would require him to explain the same. If he chooses to be silent in such a case, necessary adverse inference may legitimately be drawn against him. Article 20 (3) of the Constitution and Section 106 of the Evidence Act operate in different spheres and there is no inconsistency between said two provisions of law. 24. We noticed from the statement of the accused recorded under Section 313 of Cr.P.C. that the accused stated that he was in his in-laws' house at the time of occurrence of the alleged incident. This is the plea of alibi. However, the accused did not go to the box himself or examine any other person to establish this plea of alibi. He could have easily examined any member of his in-laws' family or any person residing in that locality to buttress his plea of alibi. He chose not to do so. This would tend to indicate that the plea of alibi is not a true or bona fide one. 25. We are in agreement with the Learned Trial Judge that the circumstances of the case indicate that it was the accused and nobody else who committed the murder of the victim. The victim was the brother's wife. He and the victim lived in adjacent houses. The victim was found dead in her house. The victim's father informed the people working at the tea estate that the accused had killed the victim. The accused fled from the place of occurrence. He was apprehended by P.W.7 and P.W.8 with the help of other people at quite some distance from the place of occurrence. The shirt he was wearing had blood stains on it. He was in possession of a pen knife smeared with blood. In spite of being called upon to do so, he offered no explanation regarding the blood on his shirt or the pen knife with blood on it. No other hypothesis can be conceived of excepting that the accused committed the crime. He was in possession of a pen knife smeared with blood. In spite of being called upon to do so, he offered no explanation regarding the blood on his shirt or the pen knife with blood on it. No other hypothesis can be conceived of excepting that the accused committed the crime. The Learned Trial Judge rightly appreciated and applied the law relating to conviction on the basis of circumstantial evidence to the facts of the case. 26. Finally, the extra judicial confession made by the accused before P.W.7 and P.W.8 puts the last nail on his coffin. The Learned Trial Judge has extensively discussed the law on extra judicial confession and has referred to several precedents including the Apex Court's decisions in Gura Singh v. The State of Rajasthan, (2001) 2 SCC 205 , Narayan Singh v. State of Madhya Pradesh, (1985) 4 SCC 26 and State of Punjab v. Gurdip Singh, (1999) 7 SCC 714 . Essentially what the Hon'ble Supreme Court has said in those cases is that it is not open to the Trial Court to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when it is shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tended to support the statement. The Learned Trial Judge rightly held that there is no reason for P.W.7 and P.W.8 to falsely implicate the accused by weaving a yarn as regards the accused confessing before them to have committed the crime. No case has been suggested by the defence that P.W.7 and/or P.W.8 had any motive for making out a false case against the accused or that they had any enmity with the accused. 27. The Learned Trial Judge has also rightly held that although the prosecution has not been able to establish motive for commission of the crime by the accused, such deficiency is not fatal to the prosecution case. 27. The Learned Trial Judge has also rightly held that although the prosecution has not been able to establish motive for commission of the crime by the accused, such deficiency is not fatal to the prosecution case. Motive is not always required to be established for commission of a crime so long as the totality of the facts and circumstances indicate that it was the accused who committed the crime. 28. The Learned Trial Judge analysed the entire evidence on record and on an overall appreciation of the evidence and the facts and circumstances of the case arrived at the conclusion that the accused had committed the offence he was charged with. The Learned Trial Judge had the opportunity of observing the demeanour of the witnesses and of assessing the credibility of the witnesses. As held by the Hon'ble Apex Court in the case of State of Madhya Pradesh v. Chhaakki Lal & Anr., (2019) AIR SC 381 , the Trial Court's appreciation of evidence should not be interfered with by the High Court unless the same is vitiated by serious error. We do not find any such error in the present case and we do not find any such infirmity in the judgment and order impugned that would persuade us to interfere with the same. 29. For the reasons aforestated, this appeal fails and is dismissed. The judgment and order of the Learned Trial Judge assailed in this appeal are affirmed. 30. We are told that the accused has been in custody for over seventeen (17) years since 13th July, 2002. He was offered bail from the Court of Learned S.D.J.M, Islampur on 23rd October, 2002 as the report of the Investing Officer in final form was not submitted before the Learned Court below within the statutory period. However, the accused could not avail of the benefit of such bail as due to financial stringency he failed to furnish the requisite bond. 31. We had called for a report from the Superintendent, Jalpaiguri Central Correctional Home where the accused is housed as regards his conduct in the Correctional Home. From the report submitted we find that the conduct of the convict is good. He is certified to be supportive and there is no complaint against him from co-inmates at the said Correctional Home. We had called for a report from the Superintendent, Jalpaiguri Central Correctional Home where the accused is housed as regards his conduct in the Correctional Home. From the report submitted we find that the conduct of the convict is good. He is certified to be supportive and there is no complaint against him from co-inmates at the said Correctional Home. However, since the accused has been in custody for more than seventeen (17) years, if an appropriate application is made for remission, the same shall be considered by the statutory authority in accordance with law and will be disposed of as expeditiously as may be convenient. 32. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.