JUDGMENT
1. Heard Mr. D.C. Roy, learned counsel appearing on behalf of the appellant. Also heard Mr. D. Sarkar, learned public prosecutor.
2. This criminal appeal under Section 200 Cr.P.C. is directed against the judgment and order passed on 17.1.1998 by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial No. 23(NT/K) of 1996 whereby the accused appellant Md. Yakub Ali was convicted under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1000 in default to R.I. for another six months.
3. The prosecution allegation, in short, is that Yakub Ali had married Nehrunessa (deceased) about 4/5 years ago prior to the date of occurrence and they used to live together as husband and wife in a separate hut situated nearby another hut occupied by the parents of the appellant. On 6.5.1996 the dead body of the said Nehrunessa was found hanging in her house whereupon the matter was informed to the police and the dead body was sent for post mortem examination and on FIR being lodged, Kailashahar P. S. Case No. 84 of 1996 was registered.
4. There is overwhelming oral evidence on record to show that the dead body of the deceased Nehrunessa was found hanging in her hut which was occupied by her along with her husband. P.W. 11 is the doctor who held – the autopsy over the body of Nehrunessa and found as follows :
1. “Both legs just above the ankle joint (Abrassion) blood clotted present downwards.
2. Abrassion marks on the left wrist joint and right side of the neck.
3. These bruising immediately above and below the groove of those injuries. The injuries in the neck was transverse, completely encircling the neck, scene low down in the neck below the thyroid cartilage. The base is soft and reddish and the dead-body was decomposed.
On examination of her scalp, membranes etc. those were found healthy.
On examination of thorax, walls, ribs and cartilages and pleurae, pericardium, those were found healthy. But, on examination of larynx squeezed. The right lung was found congested and showed ecchymoses, left lung was also found like right lung. The right side of the heart was full of dark fluid and the vessels were also found dark fluid blood.
On examination of abdomen, everything was found healthy, but in the mouth, phabyax and oesophagus, face was found congested, livid and marked with petechiae and on examination of organs of generation external, and internal, external organ was healthy, but internal organ, i.e., uterus size was 8 to 10, weeks ( Approx) pregnancy.
On examination of the muscles, bones and joint, it is found that right side of the neck, both lower extremity just above the ankle joint and superior extremity of the left side above the writ joint, abrassion and ecchymoses at the edges of the ligature mark, fracture found on the larynx and trachea and neck muscles stretched.
The ligature mark was transversed completely, encircling the neck seen low down in the neck below the thyroid cartilage. The base was soft and reddish. Abrassion and ecchymoses found at the edges of ligature mark and bruise of the neck muscles. Ecchymosed, subcutaneous tissues under the mark, carotid arteries damaged, fracture of thyroid cartilage, larynx and trachea. The face was congested livid and marked with petechiae. The neck muscles elongated. Bleeding from the nose, mouth and ears. The saliva was found absent. The ligature around the neck with more than one knots.”
5. Exbt. P 6 is the post mortem report under the signature of the doctor. In the opinion of the doctor, death may be due to combined asphyxia and apoplexy as a result of strangulation by a ligature.
6. Learned counsel for the appellant has raised preliminary objection regarding admissibility of the post mortem report stating, inter alia, that the post mortem report Ext. P-6 being a carbon copy, it is not admissible in evidence. Learned counsel has placed reliance on a decision of the Apex Court in the case of Vijender v. State of Delhi, (1997) 6 SCC 171. In the above Vijender case (supra), the doctor who conducted the post mortem was not examined although he was available. In the instant case, the doctor who conducted the autopsy has been examined. The other ground on which the post mortem report was rejected reads as follows :
“The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also.”
7. The law regarding admissibility of the carbon copy of a document was laid down by the Apex Court in the case of Prithi Chand v. State of Himachal Pradesh, (1989) 1 SCC 432. The Apex Court held at Para 4 :
“Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate Ex. P/ E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witness which clearly proves that the prosecutrix was raped by the appellant.”
8. The regulation 306 of the Police Regulations of Bengal 1943 provides for the procedure for preparation of the post mortem examination and report and it reads as follows :
“306. Posit mortem examination and report. – (a) On completing the post mortem examination the medical officer shall fill up the whole of the B.P. Form No. 50 in triplicate by the pen-carbon process. One of the carbon copies shall be sent to the investigating officer through the constable who brought in the corpse. The original report with the challan form and surat hal shall be forwarded to the Superintendent, direct, or in the case of a subordinate medical officer, dispatched to the Superintendent, through the Civil Surgeon for his remarks. The superintendent shall then forward the report to the court officer to lay before the Magistrate concerned. The register of post mortem examinations shall be kept by the medical officer,
(b) Police officers shall refer to the Civil Surgeon if they have any doubt in regard to any part of the medical report.”
9. Thus, we find that the post mortem report is to be prepared in triplicate by pen carbon and in the instant case also, the post mortem report was prepared by pen carbon in one uniform process and as such, in view of the provision of Section 62 of the Evidence Act, such carbon copy is primary evidence. Moreover, we find that in Ext. P-6, the signature of the doctor appears in original i.e. although the contents of the post mortem report was prepared in carbon copy, signatures were given on each and every carbon copy.
10. In view of the above, we hold that carbon copy prepared under one uniform process is admissible as primary evidence under Section 62 of the Evidence Act.
11. Learned counsel for the appellant has also found fault with the opinion of the doctor wherein he stated that the cause of death may be due to combine asphyxia and apoplexy as a result of strangulation by ligature. It is, therefore, submitted that doctor was not definite about in opinion. Although the doctor was cross-examined at length, not a single question was put to him as regards the cause of death or findings, which were based on examination as stated above. Thus as ‘regards the cause of death by strangulation it stands fully established in view of the findings recorded.
12. Referring to the Modi’s book of medical jurisprudence, learned counsel for the appellant has submitted that homicidal hanging is not possible by one man as usually more than one person are combined in the act, unless the victim is a child or very weak and feeble or is rendered unconscious by some intoxicating or narcotic drug. Although the attention of the doctor was not drawn to this aspect of the matter during the cross-examination, we find absolutely no substance in the above submission as this is not a case of homicidal hanging. The medical evidence on record has categorically stated this is a case of death by strangulation.
13. An attempt was made on behalf of the defence to submit that this is a case of commission of suicide by the unfortunate wife. The reasons as to why the young wife will commit suicide has not been disclosed in any manner. Moreover, the defence has not been able to show as to how the young who committed suicide in the room where there was no other apparatus available like stool, chair etc. On the contrary, the evidence on record would show that while the deceased was hanging on the room, her feets were touching or almost touching the floor. Further the findings recorded by the Doctor rules out the possibility of suicidal hanging. There are number of external injuries on the person of the deceased and these cannot be said to be self-inflicted. Doctor has also stated that the trachea was found fractured and the larynx was squeezed and haemorrhage was found on the bruise of the larynx. Further absence of saliva absolutely rules out all possibility of suicidal hanging and in the instant case ligature had more than one knot. The Trial Court has relied on the testimony of the Doctor, who held that it may be the case of strangulation and for the reasons mentioned above, we have no hesitation to agree with the above findings and hold that it is a case of homicidal strangulation.
14. Now coming to the question as to who killed the deceased Nehrunessa, there is no eye witness to the occurrence, i.e., none of the witnesses saw that the deceased being strangulated and hanged. The prosecution allegation is that the accused husband of the deceased was a burglar and he used to steal others goods and this habit of the husband was not liked by the deceased wife, who used to complain/object to such conduct and as a result, the husband was to assault her/torture her. On the ill fated day also, the deceased wife had to take shelter in the house of P.W. 8 Chayarunessa, a neighbour who had deposed that on that day at about 8 a.m. Nehrum (deceased) came to her and reported that on the previous night her husband appellant Yakub Ali brought some palli of paddy and asked her to mix them with their paddy and when she protested, she was assaulted. The deceased remained in the house of P.W. 8 till the evening when her mother-in-law took her back to the house of the accused. The present incident took place around 7/ 8 p.m. on that day. P.W. 8 further submitted that after return from her house, the deceased was subjected to assault by the accused appellant and she being the neighbour had seen the accused assaulting her (deceased). The fact that the husband used to assault and torture the young wife has been deposed by the father of the wife and other witnesses.
15. The Trial Court has convicted the accused appellant on the basis of the following circumstances :
“(i) Nehrun had the history of torture by her husband on many occasions, as and when she opposed his criminal activities. He was an habitual offender of theft, robbery, etc.
(ii) Village bhaitaks were held to settle the matter. Her father had to file criminal case against the accused.
(iii) On the date of her death she fled from her husband’s house and took shelter in the house of P.W. 8, told her the story of assault on her by the accused.
(iv) In the evening she was persuaded to return to her husband.
(v) At about 8 p.m. she died in her husband’s hut, found hanging from a beam.
(vi) The death was homicidal, strangulation by ligature. (vii) Marks of injuries was found on her body, (viii) She and her husband lived in separate hut.
(ix) There is no allegation of torture or assault against any body else or any other inmates.
(x) None other than the accused had the scope to enter the hut of the accused, kill Nehrunessa and put her hanging at 8 p.m. when inmates of other huts were in the court-yard.”
16. The following five golden principles for proof in a case on circumstantial evidence based by the Apex Court in the case of Hanuman v. State of M.P., AIR 1952 SC 343 are :
“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between “may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharasthtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between “may be” and “must be” is long and dividea vague conjectures from sure conclusions’
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so constitute the Panchasheel of the proof of a case based on circumstantial evidence.”
17. The above principles were reiterated in the case of Sharad v. State of Maharasthra, AIR 1984 SC 1622 and in the case of Dhananjay Chatterjee v. State of West Bengal, (1994) 1 JT (SC) 33. This order was reiterated in the case of State of Haryana v. Jagbir Singh, (2003) 11 SCC 261.
18. In the light of the above settled proposition of law, let us see whether prosecution has been able to establish the above circumstances. We have perused the evidence of P.Ws. 2, 4, 7 and 8 and find that these witnesses have categorically stated in respect of the said incident and in the impugned judgment, learned Trial Judge had discussed and considered their evidence in details. Learned Counsel for the appellant has submitted that the evidence of P.W. 8 is not reliable and there are certain contradiction as regards the number of houses within the compound of the accused appellant. But the fact that P.W.8 Chayarunessa is a neighbour to the accused appellant and the fact that the accused appellant used to live in a separate house along with his wife in the nearby hut of her parents are not in dispute. In such circumstances, the evidence whether there were 3 or 4 huts in the same compound is not at all material and do not affect the prosecution case. The prosecution has also brought out certain omissions from the evidence of the prosecution witnesses, and it is therefore submitted that in view of the above omissions, the evidence can not to be relied upon. From our experience, we know that how the investigation is conducted and how the statements of the witnesses are recorded by the police under Section 161 Cr.P.C. The statements are taken in a boiled form and the witnesses are asked as to when and how the incident happened. Naturally, there are lot of matters on which witnesses are not questioned and these are brought out in cross-examination and taken as omission to demolish the prosecution case. Moreover, the omissions are either normal or material. In case of material omission, it can be treated as contradiction. In the instant case, we find that the omission brought out from the witnesses or through the I.O. are all irrelevant and they do not go into the root of the case and they cannot be treated as material contradiction. At this stage, we may recapitulate the observation of the Apex Court in the case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 :
“15. As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar.”
“17. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial ; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof of beyond reasonable doubt is a guideline, not a fetish. ( See Inder Singh v. State Delhi Admn.). Vague hunches cannot take the place of judicial evaluation.
(a) Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape …. Both are public duties …’ (Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of UP v. Anil Singh, SCC p. 692 para 17). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.”
19. In the case of State of H.P. v. Lekh Raj, (2001) SCC 247, the Apex Court had observed that the Court should adopt a rational approach in the matter of acquiescence of evidence and hyper technicalities and figment of imagination should not be allowed to override the realistic and genuine approach. It was also held that minor discrepancy or variance in evidence should not make the case doubtful.
20. The defence has tried to place reliance on the evidence of P.W. 9, Alta Begam who is the step mother of the accused appellant. This witness was declared hostile by the prosecution as she tried to side with her son. The law regarding evidence of hostile witness has been well settled in a catena of decisions and we find this witness also admitted that the accused appellant and his wife were to reside in a separate house at a distance of 27/28 cubits.
21. Learned counsel for the defence has also submitted that in the present case there was no possibility of homicidal strangulation as the house in which the deceased was found hanging, was closed from inside. In support of his above submission, learned counsel has placed reliance in the case of Baburam v. State of M.P., AIR 2002 SC 758 stating that the facts in the above case were more or less identical. In the above case, although the facts are somewhat same, but we find material are difference. In the present case, there is definite evidence on record that although the room was closed from inside, the house, which is a bamboo hut, had a opening on the wall by which a person can easily come and go out. The accused appellant after strangulating the deceased wife with a ligature hanged her to show that this is a case of suicide and thereafter keeping the door closed from inside, he made good his escape by the opening of the wall. We therefore find no force in the submission that it is a case of suicidal death.
22. In view of the foregoing discussion, we hold that all the circumstances as stated has been fully established and they lead us to only one conclusion, i.e., the guilt the accused appellant and other contingencies are squarely ruled out. As the case is based on the circumstantial evidence, the question of motive is also relevant. The evidence shows that the accused person was in the habit of stealing others goods and this was not accepted by the wife who used to make protest and this was not tolerated and accepted by the accused husband who assaulted/ tortured the wife on previous night and the wife even had to take shelter in the neighbour’s house and when she returned, she was again assaulted and put to death.
23. In the result, we find no merit in this appeal and the appeal is accordingly dismissed. Conviction and sentence of the accused appellant is affirmed and the accused appellant is directed to surrender forthwith before the Chief Judicial Magistrate, North Tripura, Kailashahar to serve out the sentence.
Send down the case records.
A copy of the order be sent to the Chief Judicial Magistrate, North Tripura, Kailashahar to do the needful to procure the accused to serve out the sentence.