Bibek Chaudhuri, J.
1. The instant appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment and order of conviction dated 4th August, 2011 and order of sentence dated 5th August, 2018 passed in sessions case No.78 of 2006 (Sessions Trial No.5 (5 of 2006) by the learned Additional Sessions Judge (Newly created, Cooch Behar under Section 302 of 109 of the Indian Penal Code sentencing the appellant to suffer imprisonment for life and also to pay fine of Rs.20,000/-, in default to suffer rigorous imprisonment for a period of two years for the offence punishable under Section 302 of the Indian Penal Code.
2. One Nityananda Biswas of village South Ambari lodged a written complaint to the inspector in charge, Kotwali P.S Cooch Bihar on 17th January, 2006 stating, inter alia, that marriage of his daughter Bharati was solemnized with the appellant Joydeb Das about four years before lodging the complaint. After marriage, there was no matrimonial peace and harmony between the parties. On the date of lodging complaint he received an information from his son Chandra Mohan that his daughter Bharati was murdered by her husband Joydeb on being abetted by his father Harendra Das. Immediately he rushed to the matrimonial home of his daughter and found her deadbody lying on the floor of house with sharp cutting injury on her person. It was alleged that the appellant, namely Joydeb Das with active support and help of his father committed murder of his wife assaulting her on her neck with the help of a spade. The appellant allegedly admitted his guilt in presence of local people.
3. On the basis of the said complaint, police registered Kotwali P.S case No.20 of 2006 dated 17th January, 2006 under Section 302 of the Indian Penal Code against Joydeb Das and under Section 302/109 of the Indian Penal Code against Harendro Nath Das, father of Joydeb and took up investigation of the case.
4. On conclusion of investigation police submitted charge sheet against both the accused person under Section 302/109 of the Indian Penal Code on 28th March, 2006. The investigating officer also filed a supplementary charge sheet being No.273 of 2006 on 18th August, 2006 producing the chemical examination report obtained in connection with the case.
5. Both the accused person faced trial. It is found from the lower court record that charge under Section 302 of the Indian Penal Code was framed against Joydeb Das, while charge was framed against Harendra Das under Section 302/109 I.P.C.
6. In order to establish the charge against the accused person, prosecution examined 11 witnesses. A series of document, viz, the FIR including the formal FIR, seizure lists, carbon copy of dead body challan, carbon copy of inquest report, carbon copy of PM report, chemical examination report, serological report and the rough sketch map of the place of occurrence were marked exhibits.
7. On conclusion of the evidence on behalf of the prosecution, accused were examined under Section 313 of the Code of Criminal Procedure. Defence version is denial of the prosecution case.
8. The learned Additional Sessions Judge, Cooch Behar on appreciation of evidence on record found the appellant guilty for committing offence under Section 302 of the Indian Penal Code.
9. However, co-accused Harendra Das was found not guilty of the offence punishable under Section 109 read with Section 302 I.P.C and he was accordingly acquitted.
10. On finding guilty of offence under Section 302 of the I.P.C accused Joydeb Das was convicted and sentence to suffer imprisonment for life and also to pay fine of Rs.20,000/- in default to suffer rigorous imprisonment for a period of two years.
11. The said judgment, order of conviction and sentence is assailed by the convict in the instant appeal.
12. Amongst the witnesses on behalf of the prosecution, the defacto complainant who deposed during trial of the case as PW1 is the father of deceased Bharati. PW2 Subal Mishra is the scribe who wrote the complaint as per the statement of Nityananda Das. PW3 Paritosh Sarkar is a local witness who went to the place of occurrence after hearing the news of death of Bharati. From the evidence of PW4 Haider Ali, it is ascertained that when he went to the house of the appellant he found the police officer present in the said house. The police officer seized a spade and blood stain as well as controlled earth from the place of occurrence. PW4 is a witness of the seizer of the spade and blood stain and controlled earth. PW6 Gautam De is another witness to the seizer of the aforesaid article he also signed the inquest report prepared by a police officer. PW8 Dr. K. Mukherjee held postmortem examination over the dead body of deceased Bharati Das on 18th January, 2006 in connection with Kotwali PS U.D Case No.16 of 2006 dated 17th January, 2006. During autopsy, he found four sharp cutting injuries on the anterior surface of neck exposing trachea, margins were sharp cut and according to him, the death was due to neuro-hemorrhage shock due to the injuries, homicidal in nature. It was also opined by PW8 that the similar kind of injuries might be caused by a spade. The investigation was taken up by PW11, S.I Naresh Chandra Das. During investigation he said the seized spade for serological examination. After filing the charge sheet the investigating officer (PW11) received the serological examination report wherefrom it is ascertained that the seized spade was stained with human blood.
13. PW2 Subal Mishra stated in his evidence that the appellant made an extra judicial confession before him and other witnesses that he committed murder of his wife Bharati.
14. It is strenuously argued by Mr. Imtiaz Ahamed that the entire prosecution case is based on circumstantial evidence and extra judicial confession allegedly made by the appellant to PW2 Subal Mishra. From the evidence of PW2 Subal Mishra, it is found that after being informed by the appellant himself about the commission of offence he handed over the appellant to one Tapan Sarkar. The said Tapan Sarkar has not been examined during trial by the prosecution.
15. It is further urged by Mr. Ahamed that according to the defacto complainant he got the information about the death of his daughter Bharati from his son Chandra Mohan. The said son of the defacto complainant has also not been examined by the prosecution.
16. It is further submitted by Mr. Ahamed, learned Advocate for the appellant that police seized one spade from the house of appellant. It is ascertained from the serological report that the spade was stained with human blood however the blood group could not be ascertained. It is not the case of the prosecution that seizer of the spade was made on the basis of identification by the appellant. Police did not record any statement of the appellant before discovery of a fact, in the instant case the alleged weapon of offence. Therefore, the alleged weapon of offence was not recovered leading to the statement of the appellant. When the spade was recovered, the wooden butt fixed with the spade was found to be in loose condition. According to the learned Advocate for the appellant a spade cannot be used as an offending weapon causing sharp injury cutting trachea and carotid bone of the neck of the deceased with a loose butt.
17. The learned Advocate on behalf of the State has supported the prosecution case and the judgment and order of conviction and sentence passed by the learned trial Additional Sessions Judge.
18. We have carefully perused the judgment delivered by the learned Additional Sessions Judge in Sessions Case No.78 of 2006. The learned Judge held the appellant guilty for committing offence under Section 302 I.P.C on the basis of the following circumstances:-
1) The dead body of Bharati Das with four deep sharp cut injuries on her neck was found the bed room of Joydeb Das and Bharati Das.
2) The murder of victim was committed in broad day light.
3) Both the accused persons were arrested by Police when they were apprehended by public.
4) None of the family members of the accused persons informed the incident of death of Bharati to the local P.S.
5) Blood stained spade was seized in presence of witnesses and accused Joydeb Das.
6) The chemical examination report supported the prosecution case that the seized spade stained with human blood.
7) Accused Joydeb Das left his home after incident and confessed his guilt to Subal Misra on 17.01.06 at about 11 A.M on their way to Khagrabari.
19. It is well settled that when a prosecution case rests on circumstantial evidence only, those circumstances should in the first place, be finally established, and further they should be a definite pointer towards the guilt of the accused. It should not only be consistent with the guilt of the accused, but must also be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. In Ram Avtar vs. The State (Delhi Administration) reporting in AIR 1985 SC 1692 the Hon'ble Supreme Court took into consideration the following circumstances:-
i. Marriage between the deceased and the appellant.
ii. Relation between the two started becoming strained after about six months of marriage.
iii. The accused neglected, abused and teased her.
iv. The deceased reported the incident to her relatives and also to local panchyat but they failed to settle their dispute.
v. The incident took place in dead hours of night when there was no possibility except the accused and the victim staying together.
vi. On the fateful night of the incident, the accused and the victim was last seen together by some of the witnesses. On the next morning the accused left his house and stayed in different places for days together.
vii. During her lifetime the victim wrote some letters complaining of negligence and cruel behavior of the accuse to her.
viii. From the place of occurrence police seized some broken bamboos of the deceased and one pair of cufflinks where the deceased was strangulated.
ix. The medical evidence supports that the deceased had died of manual strangulation.
20. According to the Hon'ble Supreme Court, the above mentioned circumstances are so interlinked in the chain of circumstantial evidence that it is difficult to truncate them and if the evidence as an integral whole is considered, the inescapable conclusion is that excepting the appellant nobody else could have committed the murder.
21. Bearing the well established principles of appreciation of circumstantial evidence, let us now scan the evidence on record adduced by the witnesses during trial of the case against which this appeal is filed.
a. The defacto complainant alleged that since her marriage with the appellant, his daughter Bharati was not happy. The appellant used to treat her with cruelty. It is important to note that marriage of Bharati was solemnized with the appellant about eight years before the unfortunate incident. She had a son in the said wedlock. During her lifetime no allegation was made against Joydeb that she used to treat his wife with cruelty.
b. The defacto complainant got the information about unnatural death of his daughter from his son Chandra Mohan. However, the said Chandra Mohan was not examined.
c. From the evidence of PW2 it is ascertained that on the date of occurrence at about 11 a.m while he was going to his place of work riding on a cycle the accused sought for a lift from Mohisbathan to Khagrabari. While the appellant was travelling with PW2, he allegedly disclosed that he had assaulted his wife by a spade and his wife became senseless. Then he handed over the appellant to Tapan Sarkar. The said Tapan Sarkar who took custody of the appellant soon after the occurrence was not examined.
d. The deceased was murdered in side his matrimonial home in broad day light from the sketch map prepared by the investigating officer, it is found that the house of the accused was not butted and bounded by any wall.
e. It is very natural and probable that if a lady receives repeated blow by a sharp cutting weapon, she would try to save herself and raise hue and cry. From the sketch map (Exhibit-8), prepared by the I.O, houses of one Mahendro Das and Niranjan Biswas were situated in a very close proximity to the house of the accused. Surprisingly enough, at the time of occurrence local residence did not rushed to the P.O.
f. The learned trial judge relied on the circumstances that the police officer arrested the appellant and his father after they were apprehended by the public. But no such 'public' deposed in this case in support of the prosecution.
g. The extra judicial confession alleged made by the appellant has not been proved.
h. The appellant did not identify the alleged offending weapon. Therefore, recovery of weapon remains doubtful.
i. The police did not send the wearing apparels of the victim for forensic examination.
j. Last but not the least, it is highly doubtful to hold that repeated assault could be made by a spade which was fitted with a loose butt. If a spade is fitted with loose butt and is used for any purpose whatsoever, there is every possibility that the spade would be dislodged from the butt.
k. The learned judge failed to consider the abovementioned circumstances in his judgment.
22. It is pertinent to note that the couple did not reside alone in the house where the incident occurred. Father-in-law of the victim, an acquitted accused, was also present in the house. The difference between the appellant and the acquitted accused, that is father-in-law, i
Please Login To View The Full Judgment!
s that the appellant allegedly made an extrajudicial confession to P.W.2 which for reasons above, we are not persuaded to rely upon. Under such circumstances, in view of the acquittal of co-accused who was also an inmate of the house where the incident occurred and appears to have been present at the time of occurrence, we consider it unsafe to rely on the same set of circumstances to bring home the guilt of the appellant merely on the ground he was the husband of the deceased. 23. Though the offence is gruesome, but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so formed as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. Between may be true, and must be true there is a long distance to travel which must be covered by clear cogent and unimpeachable evidence by the prosecution before an accused is held to be guilty and is convicted and sentenced. 24. For the reasons stated above we fail to concur with the decision arrived at by the learned Additional Sessions Judge, Cooch Behar in Sessions Trial No.5 (5 of 2006). 25. The judgment and order of conviction and sentence are set aside. The appellant accordingly be acquitted from the charge under Section 302 I.P.C, set at liberty. 26. The appeal is, accordingly, allowed. 27. Let a copy of this judgment be immediately sent to the correctional home where the appellant is suffering sentence. I agree. Joymalya Bagchi, J.