JUDGMENT
Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge; 1st Court, Bankura in Sessions Case No. 3(2)92 S.T. No. 4(7)92 on 27.03.1998.
2. The prosecution case, in brief, is that the defacto complainant’s daughter Jharna was given in marriage with accused Gadai @ Jiten Bouri about six years back. Since then the said Gadai and his mother Khandi Bouri used to ill-treat and torture upon her physically and mentally and threatened to drive her out from the house, and the complainant (P.W. 2) informed the matter to his eldest son-in-law Madan Bouri (P.W. 1) and relative Badal Bouri. On 01.08.1990 at about 9.30 a.m. on receipt of an information from his daughter’s neighbourers Habu Bouri (P.W. 11) and Biswanath Bouri (P.W. 8) that his daughter Jharna was lying on her bed, the complainant with his wife Bhanumati went there and found the dead body of their daughter with bruise mark on her neck. It is strongly apprehended that at the instigation of his mother, accused Gadai committed murder of Jharna by strangulation with the help of a wire or a strong narrow rope. After completion of investigation police submitted charge-sheet against accused Gadai @ Jiten Bouri under Section 302 IPC. Hence, accused Gadai @ Jiten Bouri was charged under Section 302 IPC.
3. The defence case, as suggested to P.Ws. and as contended by the accused during his examination under Section 313 Cr. P.C., is that Jharna was never subjected to torture physically or mentally by the accused nor the accused committed her murder. He used to take his meal in his house daily in the evening and used to sleep in his cycle repairing shop at Paprar More at night.
4. Fifteen witnesses were examined on behalf of the Prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the learned Court below found the accused guilty under section 302 IPC, convicted him thereunder and sentenced him to suffer imprisonment for life and to pay fine of Rs. 1000/- i.d. to R.I. for one year.
5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. The important witnesses in this case are P.Ws. 1, 2, 12, 14 and 15.
8. According to the evidence of P.W. 2 Joydeb Bouri (defacto complainant), his second daughter Jharna was given in marriage about six years back with accused Gadai who used to quarrel with her and he could not tolerate her. Whenever he visited the house of Jharna or she visited his house, she used to narrate the incident of torture and assault upon her by the accused. In Sraban she was murdered by accused Gadai and at that time she was staying at her in-law’s house. On receipt of information of death of Jharna from Habu Bouri (P.W. 11) who informed that he was attacked with diarrhoea, he along with his wife Bhanumati rushed to the house of the accused and found her daughter lying dead with a black bruise mark on her throat. Being accompanied by Santosh Layek (P.W. 13) he went to the P.S. and lodged an FIR (Ext. 2) which was scribed by the said Santosh. Since her husband Gadai was the sole custodian, he must be responsible for the offence of murder. Similar is the evidence of P.Ws. 1 and 12. P.W. 1 Madan Bouri stated that his sister-in-law Jharna who used to reside in her in-law’s house was subjected to torture both physically and mentally by the accused who very often used to assault her which was reported to him by his wife (P.W. 12). On getting the information he rushed to the house of the accused and found the deadbody of Jharna with a black bruise mark on throat lying on the floor in a room and accused and his mother present there. The accused handed over a wire to police and the police seized the same in his presence under a seizure list (Ext. 1/2). The victim left behind a child of about l 1/2 year who is now staying with the elder brother of the accused. P.W. 12 Smt. Hira Bouri – elder sister and neighbourer of the victim stated that accused Gadai used to quarrel with Jharna and torture upon her by way of assault and not offering food. She and Jharna used to take bath in the same tank, used to fetch water from the same place and they had meeting several times when Jharna used to report on weeping regarding the said torture by Gadai on her, and she in turn reported the matter to her husband (P.W. 1) and parents. Accused Gadai murdered Jharna, and she went to the house of her father-in-law in the morning, found the dead body of the victim with sign of wound on her neck and when she asked Gadai as to the reason for the said marks of wound on her neck, Gadai kept mum. P.W. 13 Santosh Layek, Upa-pradhan at the relevant time and a neighbourer of the accused, who was declared hostile by the Prosecution, saw the dead body of the victim in the courtyard of the accused and noticed a mark on the neck of the victim. He scribed the FIR (Ext. 2) according to the dictation of P.W. 2 and became a witness to the inquest. P.W. 3 Shibu Bouri, P.W. 8 Blswanath Bouri, P.W. 9 Smt. Padma Bouri & P.W. 11 Habu Bouri, -covillagers, who were declared hostile, expressed their ignorance about the cause of death of the victim. P.W. 10 Gour Bouri was simply tendered for cross-examination. P.W. 6 Shibu Bouri – elder brother of the accused, and his wife P.W. 7 Smt. Bedana Bouri, who were declared hostile, also expressed their ignorance about the cause of death of the victim and stated that Jharna died in the room/house of the accused. P.W. 4 Smt. Sumitra Bouri, neighbourer, who also expressed her ignorance about the cause of death, had been to the house of in-laws of the victim on receipt of the news of her death and found her dead in a room. She stated that after her death Gadai has married again. P.W. 5 Aswini Bouri stated that the accused has a cycle repairing shop at Paprar More. P.W. 15 Dr. J.N. Dey, the then Professor and Head of the Department of Forensic & State Medicine, Bankura, on holding PM examination over the deadbody of the victim on 02.08.1990 found lacerated would 2″ x 1 1/2″ x muscle deep over right eye-lid, ligature mark which was low down 1.2″ above the main part of starnurve 4 1/2″ below the left angle of lower jaw 4.2 below right angle of mandible which was sponbaneous and no definite gap between the two ends which is more or less circular, length of ligature mark being 11″, breadth .2″, deeply ferro abraded and dark brown in colour, on dissection – skin and the size of mark was found deeply fermentise and tissues between skin were handed whiten thickened and listening in character. On dissection, fair amount of extravassated clotted and liquid blood seen to infiltrate the tissues of both angles of mandible covering an area of 2 1/2″ x l 1/2″ x over right side 2″ x 2 1/2″ on the left side and over front of neck covering an area 4″ x 3″, (2) fair amount of extravassated, clotted and liquid blood seen to infiltrate the tissues of upper part of front of chest covering an area of 3″ x 2″, (3) fair amount of extravassated clotted and liquid blood seen to infiltrate the tissues and sublactation (fracture) of cartilages of trachea, (4) fracture (sublactation) of greater cornua of hyoid bone of right side – fair amount of extravassated clotted and liquid blood seen to infiltrate the tissues in and around the lacerated wound and fracture described, and opined that death was due to strangulation by ligature, ante mortem and homicidal in nature. It is his further opinion that strangulation by ligature is sufficient to cause death. P.W. 14 S.I. Kartick Chandra Muhur on receipt of a written complaint on 01.08.90 (wrongly typed as 01.01.90) at about 13.00 hrs. from P.W. 1 filled up the formal FIR (Ext. 2/3), took up investigation, visited the P.O., prepared a sketch map with index (Ext. 4), prepared inquest report and seizure list (Ext. 1/2), collected PM report, and after his transfer his successor S.I. K.G. Das took up further investigation of the case and submitted charge-sheet.
9. It would appear from the above that there is no direct evidence, and the case rests upon circumstantial evidence alone, the circumstances being two-fold viz. (1) victim last seen together with the accused and (2) handling over of the weapon of offence by the accused to the I.O.
10. When a case hangs on circumstantial evidence alone, such evidence must satisfy three tests. First, the circumstances on which an inference of guilt is to be drawn must be cogently and firmly established, secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. And thirdly, the circumstances taken collectively should form chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
11. So far the first circumstance above is concerned, it is undisputed that the victim Jharna who was the legally married wife of accused Gadai was found murdered by strangulation lying in the room of the accused on 01.08.90. There is also no dispute that the accused has a cycle repairing shop with an adjacent room at Paprar More. According to the defence case, as suggested to P.W. 6, his brother Gadai used to come to house daily in the evening for taking his meal and used to pass night in his said cycle repairing shop. Onus to prove alibi is on the accused, as it is a matter within his special knowledge and such plea of alibi when taken by an accused must be proved by him and he is to substantiate and make it reasonably possible. He must lead evidence to show that he was so far off at the moment of the crime from the place when the offence was committed and he could not have committed the offence. Hence, though P.W. 12 denied that Gadai ever stayed in his cycle repairing shop or in the room during night, it is the evidence of her husband P.W. 1 that off and on Gadai used to reside with his wife in the adjacent room of his cycle repairing shop. Similarly, P.W. 2 deposed that Gadai used to pass night in his cycle shop along with his daughter and sometimes she used to reside in her in-law’s house. Occasional stay of the accused with his wife at night in the adjacent room of the cycle repairing shop is not the determinant factor here, but whether the accused on the date of incident i.e. 01.08.90 stayed with the victim in his house. As it is a matter within the special knowledge of the accused, the burden lay upon him heavily to substantiate it by leading evidence which he failed to discharge. No such plea was taken by him even during his examination under Section 313 Cr PC. Consequently, the said alibi fails and it may be concluded that the accused passed his night on the date of incident with the victim in his room. Ordinarily, the fact that the accused and deceased were last found together and failure of acused to explain disappearance is a strong circumstance pointing to murder by the accused. The cases of Ashok Kumar v. State (Delhi Administration) reported in 1996 Cr LJ 421 (SC), Ganeshlal v. State of Maharashtra reported in 1993 SCC (Cr) 435 and U.P. v. Satish reported in (2005)1 C Cr LR (SC) 366 may be relied on. In Ganeshlal case (supra) it was held that when the death had occurred in the custody of the accused, the accused is under an obligation to give a plausible explanation for the cause of her death in his statement under section 313 Cr PC at least. Any sort of explanation on behalf of the accused will not suffice. The explanation must be cogent and reasonable. Here, no explanation was virtually offered by the accused during his examination under Section 313 Cr PC excepting a plea of innocence. There is nothing to suggest in the evidence that any outsider came to the house of the accused on that date or the victim had any enmity with other persons. Therefore, when the victim and the accused with their minor child, aged about 9 months or l 1/2 years, were inside the room and there was no third person there, the fact that the victim was found dead caused by strangulation, in the room of the accused is a strong circumstance unerringly point to murder by the accused and none else.
12. When a wife suffers an unnatural death, like the present one, it would be the duty of the husband or some other member of the family to report the matter immediately to in-law’s house and to the police. But here, there was no attempt on the part of the accused to report it to P.W.2 or to the police. P.W. 2 on being informed about death of his daughter on account of diarrhoea from co-villager Habu Bouri (P.W. 11) had been to the P.O. with his wife. There is nothing to indicate on the part of the defence of the said P.W. 11 that he on being requested by the accused informed the matter to his in-law’s house. It is the definite evidence of P.W. 12 that she went to in-law’s house of her sister Jharna in the morning, found the deadbody of the victim with a wound on her neck and on her query to the accused as to the reason for the said marks of wound on her neck, he kept mum. The conduct of an accused for an offence previous and subsequent to the crime are relevant facts, as was observed in Ganeshlal case (supra). So, the said inaction on the part of the accused to inform about the incident of unnatural death of his wife to the house of his in-laws and to police and to maintain silence on being asked by P.W. 12 as to the reason for the mark of wound on her neck when it was his duty to speak, is beyond the normal conduct of a person.
13. As regards, second circumstance above, it is the specific evidence of P.W. 1 that Gadai made over a wire to police in his presence which remains uncontroverted in his cross-examination. This seizure list (Ext. 1/2) prepared by P.W. 14 reveals that the article seized was an iron wire of about 18″/20″ which was made over to the I.O. by the accused after bringing it out from various articles lying on the southern side of the room. Section 27 of the Evidence Act prescribes two limits for determining how much of the information received from the accused is provable against him viz. (1) the information must be such as has caused discovery of the fact i.e. the fact must be the consequence and the information the cause of its discovery, and (2) the information must relate distinctly to the fact discovered. Section 27 allows proof of such part of information as relates distinctly to the fact discovered. If the police officer wants to prove the information, the Court would have to consider whether it relates distinctly to the fact discovered. In the present case, the accused himself brought out the weapon of offence i.e. wire from various articles lying on the southern side of the room is admissible without attracting operation of section 27. The case of R.M. Sharma v. State of Bombay may be referred to. Furthermore, the evidence simpliciter that an accused himself brought out the weapon of offence from some place where the incriminating article was hidden is admissible as conduct under section 8 of the Evidence Act irrespective of whether any statement of the accused was contemporaneously with or antecedent to such conduct falls within the purview of section 27. The case of Prakash Chand v. Stale (Delhi Administration) may be relied on.
14. Inferences which may arise leading to such recovery are: (i) the informant accused is connected with the fact so discovered and if the fact is incriminatory the connection of the accused therewith is established, (ii) the fact so discovered was within the exclusive knowledge of the informant, (iii) the fact is referable to the culpable possession of it by the informant, (iv) the informant has secreted away the fact with the culpable motive, and (v) the informant was a person who was responsible for the culpable act by reason of which the resultant fact is traced and available, and all these inferences may be circumstantial bringing the accused nearer the offence. If the authorship of the concealment is part of the information given by the accused that is an additional circumstance to fix criminality on him in the absence of any acceptable explanation leading to the innocence. So, the said fact of bringing out of weapon of offence by the accused from certain place followed by seizure of the same by P.W. 14 is an additional link in the chain of circumstantial evidence in proving the guilty of the accused.
15. Mr. Kashem All Ahmed, learned counsel for the appellant, relying on the case of Sardar Hossain v. State contended that since the present case hangs upon circumstantial evidence, motive behind the crime is essential which is absent in the present case and accordingly his client deserves to be acquitted. Though the prosecution is not to prove motive as it is known only to the accused, in cases where circumstantial evidence is available, at the outset, one normally starts looking for the motive and opportunity to commit the crime. If the evidence shows that the accused had a strong enough motive and had the opportunity of committing the crime, the accused may safely be convicted. Men do not act wholly without motive and failure to discover motive of the offence does not signify the non-existence of the crime nor proof of motive is ever an indispensable factor for conviction, as was held in the case of Ashok Kumar (supra). Ordinarily, offence against a married woman is committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relative of the husband is not available, and so while deciding as to whether the woman was harassed or ill-treated by her husband or his relatives, various factors and some circumstances can be considered by the Court. In the case on hand, out of fifteen witnesses, seven were declared hostile and one was simply tendered for cross-examination. It is the specific evidence of P.W. 1 that Jharna was tortured both physically and mentally by the accused which was informed to him by his wife P.W. 12. P.W. 2 deposed that the accused used to quarrel with Jharna and could not tolerate her which was reported by Jharna to him at the time of his visit to her in-law’s house or at the time of her visit to his house. It is the evidence of P.W. 12 who is the elder sister and neighbourer of the victim at a distance of about 100/150 cubits away that the accused used to quarrel with Jharna, assault her many times and did not give her food which she used to inform her on weeping at the time of their taking bath in the same tank or fetching water from the same place and at the time of their meeting of several times which remains uncontroverted in her cross-examination. So, the strained relation between the parties was the immediate cause behind the crime. The facts and circumstances of the aforesaid decision so referred to by the learned counsel for the appellant being quite different, the said case has no manner, of application here.
16. Mr. Ahmed next contended that the very fact that the accused did not abscond after the incident is an important factor which suggests that the offence was not committed by his client. Merely because the accused did not abscond after the incident is no ground for holding him not guilty particularly when the facts, circumstances and materials on record connect him with the commission of offence.
17. Mr. Ahmed levelled a criticism for non-production of the weapon of offence i.e. wire before the Court at the time of trial. Mr. Asimesh Goswami, learned Additional Public Prosecutor, on the other hand, submitted that since the trial started after a lapse of about 7 1/2 years from the time of incident, the weapon of offence could not be readily traced out and such non-production of the weapon should not be any ground to discard the prosecution story. When the evidence on record is acceptable and is considered to be sufficient to establish the charge, the whole of it would not lose all its value for non-production of the said weapon of offence which is merely corroborative and as such non-production of the weapon of offence in the above circumstances does not at all affect the Prosecution story.
18. Finally, Mr. Ahmed contended that as the present case rests upon circumstantial evidence alone and the chain in the circumstances cannot be held to be complete, his client is entitled to get benefit of doubt. Benefit of doubt means doubt of a reasonable mind, not of a vacillating mind. The prosecution need not arrive at conclusive proof, and what is needed is proof beyond reasonable doubt. It is not necessary that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused however, extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence remained un-excluded by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not farfetched, as was held in the case of State of A.P. v. Prasada Rao . In State of M.P. v. Dharkole reported in 2005 SCC (Cr) 225 it was held: “Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial as to the guilt of the accused persons arising from the evidence, or from the lack of it as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.” So, when the facts, circumstances and materials on record unerringly point to the guilt of the accused, the question of extending the benefit of doubt to the accused is quite immaterial.
19. In the premises, there being no material to interfere with the decision of the learned Court below, the present appeal be dismissed.
20. The order of conviction and sentence passed by the learned Court below is hereby confirmed.
21. Alamats, if any, be destroyed after the period of appeal is over.
Let a copy of this Judgment along with the LCR be sent down at once to the learned Court below.
Debiprasad Sengupta, J.
22. I agree.