Babul Sarkar vs State Of Assam

P.K. Deka, J

Heard Mr. R. M. Choudhury, the learned Amicus Curiae and Mr. M. Phukan, the learned Additional Public Prosecutor, Assam.

This appeal is against the judgment and order of sentence dated 23.6.2016 passed bythe learned Additional Sessions Judge, (FTC), Darrang at

Mangaldai in Sessions Case No.200(DM)2015.

The prosecution case on the basis of an FIR lodged by Sri Arjun Sarkar, son of Late Fikir Sarkar, resident of Mowamari under Mangaldai Police

Station, district Darrang dated 04.08.2015, deceased Puspa Sarkar was married to the present accused/appellant Babul Sarkar about 7 (seven) years

back. She was subjected to torture both mental and physical by the said accused/appellant. On 03.08.2015, at about 6.30 PM the accused/appellant

visited the house of Arjun Sarkar, the father of the deceased Puspa Sarkar and told him that Puspa was found missing. A sum of Rs.500.00 was given

to the accused/appellant by the said Arjun Sarkar, the informant and on the next day, at about 5.00 AM, the informant came to know that the dead

body of his daughter Puspa was found lying naked by the side of the Mangaldai River. The accused/appellant had killed his daughter and threw her

into the river. On the basis of the FIR, Mangaldai P.S. Case No.675/2015 under Section 304(B) of the IPC was registered and on the basis of the

investigation and on its completion charge sheet was filed against the accused/appellant. On being committed the learned trial court charged the

accused/appellant under Sections 306/302/304(B) of the IPC and was put on trial. During the trial the prosecution side examined 9 (nine) witnesses

and the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. wherein total denial was the plea taken by the

accused/appellant. No evidence was adduced by him. The learned trial court framed the following points for determination:

â€(i) Whether the accused, being the husband of the deceased Puspa Sarkar subjected her to cruelty for demanding dowry abetted and incited her to

commit suicide for which she committed suicide by strangulating herself on or about in the intervening night of 03.08.2015 to 04.08.2015 at

Mowamari?

(ii) Whether the accused committed murder of his wife Puspa Sarkar by strangulatingher and throwing the dead body away by the side of the river on

the intervening night of 03.08.2015 to 04.08.2015?

(iii) Whether the accused caused death of his wife Puspa Sarkar by subjecting her tocruelty by demanding dowry within seven years of their marriage

and her dead body was found lying by the side of a river in an abnormal circumstance in the morning of 04.08.2015?â€​

The learned trial court held that the prosecution was able to prove the case againstBabul Sarkar beyond any reasonable doubt through

circumstantial evidence and the circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within all

human probability the murder was committed by the accused Babul Sarkar and the accused/appellant was held liable for murder of Puspa Sarkar

whose dead body was found lying by the side of the riverine reef of Mangaldai River in a naked position and the accused/appellant was convicted

under Section 302 of the IPC. It was further held that the evidence was found insufficient to hold the view that any of the offences under Section 306

or 304(B) of the IPC was committed by the accused/appellant and he was acquitted from the purview of the charges under Section 306/304(B) of the

IPC. The accused/appellant Babul Sarkar was sentenced to suffer Rigorous Imprisonment for life with a fine of Rs.5,000.00 (Rupees five thousand),

in default Rigorous Imprisonment for 3 (three) months.

Mr. Choudhury, the learned Amicus Curiae submits that the conviction of theaccused/appellant under Section 302 of the IPC is not proper

inasmuch as there was no eye witness as to who caused death of Puspa Sarkar and the learned court below, on the basis of circumstantial evidence,

found that the prosecution was able to prove the case beyond any reasonable doubt against the accused/appellant. None of the circumstances as

highlighted by the learned court below could be held to be proved beyond any reasonable doubt which are relevant for attributing the guilt on the part

of the accused/appellant and that too beyond all reasonable doubt. As such he sought for benefit of doubt to be given to the accused/appellant by

setting aside the judgment and order of sentence.

Mr. Phukan, the learned Additional Public Prosecutor on his part submits that thoughthere was no eye witness attributing the crime involving the

accused/appellant but the circumstances which are incriminating in nature shows the involvement of the accused/appellant in the crime. Referring the

postmortem report, Mr. Phukan submits that before the death of the victim, the injuries found on the dead body of the victim goes to show that prior to

her death there was violence caused to her following which swelling of the left cheek with circular tooth mark and incised wound on the right ring

finger were found. The same being considered with the deposition of PW5, Sefali Sarkar wherein she stated that she saw Puspa Sarkar at about 6.00

PM by the side of the road and subsequent visit of the accused/appellant to the residence of PW2, Arjun Sarkar, the father of the deceased at 6.30

PM is sufficient enough to show that the said circumstance has been proved beyond any reasonable doubt that after killing the deceased the

accused/appellant went to the house of his father-in-law informing that the deceased was missing from his house. In addition to that the torture

committed to the deceased is proved by almost all witnesses of the prosecution side. More so, the fact that prior to one month of the said incident

Puspa Sarkar was forced to stay at her parental house for two months owing to torture by the accused/appellant goes to show that the relation

between the deceased and the accused/appellant was a strained one and possibility of killing the said victim cannot be ruled out as he is addicted to

drug like substance and alcohol. As held by the learned trial court, Mr. Phukan further submits that the other incriminating materials that the dead body

of Puspa Sarkar was lying face down on the sand of the riverine reef and identification of the dead body of Puspa Sarkar by the accused/appellant

without there being his presence nearby, goes to show about his involvement in the crime. Finally Mr. Phukan supports the conviction of the

accused/appellant stating that the presumption of his involvement in the crime can well be drawn from the circumstance so proved having direct

bearing to the guilt of the accused/appellant.

We have given our anxious consideration of the submission of the learned counsel. Inthe criminal jurisprudence an accused person must be

presumed to be innocent until the prosecution has been able to establish the charge against him beyond reasonable doubt.

In the present case in hand there is no direct evidence to show the involvement of theaccused/appellant in the offence charged against him.

Circumstantial evidences are required to prove the involvement of the present accused/appellant in the crime beyond any reasonable doubt.

Circumstantial evidence, in order to draw presumption thereof must be established beyond any reasonable doubt. Such established fact or facts forms

the basis for the conclusion of the guilt of the accused/appellant. The fact so established ought to be consistent only with the hypothesis of the guilt of

the accused/appellant. In order to examine to what extent the circumstances, as held by the learned trial court to be proved beyond any reasonable

doubt, we enter into the evidence of the witnesses of the prosecution side.

PW1, Sri Ratan Ray deposed that he knew both the accused/appellant and the ArjunSarkar, the informant. About two months ago from the day of

occurrence, the accused/appellant assaulted Puspa and sent her to maternal home. After staying there for two months Babul took her back by giving

assurance that he would not torture his wife Puspa. They lived peacefully for a month and thereafter he saw the dead body of a woman lying on the

bank of the river. Babul came there and identified her as Puspa Sarkar. On the suspicion that he might have killed her or else how could he identify

her without seeing the dead body, the people suspected, apprehended and handed him over to police. Later on he heard that Babul killed Puspa. He is

the seizure witness of the seizure list, Exhibit-1 whereby the police seized the bangles, an ear ring which was found in the place of occurrence. In his

cross-examination he deposed that he did not visit Babul’s place and there were number of houses including that of the elder brother of Babul.

PW2 is the father of Puspa Sarkar and the informant who deposed that Babul is his son-in-law and he used to beat his daughter and demanded

money. Babul used to go to his house and told him that he would go to jail after killing Puspa. On the previous day of the occurrence Babul came to

his house and asked him whether Puspa had come to their house and that he sent her to bring money. Though he gave Rs.500.00 to Babul, he became

suspicious and it was night by then. He went to the house of Babul and saw him inhaling dendrite and walking unsteadily. On being asked, Babul told

him that he did not know anything. He also visited the house of the elder brother of Babul and asked about Puspa. They told that they had not seen

her. He came back by crossing the river and slept. On the next day, after hearing about the dead body, he went there and found a naked female dead

body lying prostrate floating on the river. Babul went there and identified Puspa and people apprehended him suspecting him as to how he could

identify Puspa without seeing the dead body. He exhibited the FIR as Exhibit-2. He denied about the visit of Puspa at 3.00 PM on the day prior to the

day of occurrence to his house.

PW3, Sri Dhiren Mandal supported the fact of seeing the naked dead body lying on theedge of the river and about the identification by Babul and

on being suspicious people apprehended him. Babul used to inflict torture on Puspa after consuming dendrite, alcohol and ganja. PW4-Saraswati

Sarkar, the mother of the victim who supported the statement of PW2, the father of the victim. In her cross-examination she deposed that Babul used

to stay in a rented house of one Sri Polan. Supported the fact that Babul is responsible for the death of her daughter. PW5 is Smti. Sefali Sarkar. She

is a nearby resident of Babul. Around 6.00 PM while she was going to a shop she saw Puspa sitting by the roadside but she did not talk to her and on

the following day Puspa was found lying dead by the side of the river. In her cross-examination she stated that she did not see Babul assaulting her on

the day of occurrence. But supported that Babul used to assault her and she then used to go to her parents’ house. She stated that Babul used to

inhale dendrite and ganja and he once gagged one woman. PW6 is Smti. Sumitra Chaw who is also a neighbor and she knew both Puspa and Babul.

She supported the statement of PW5 that once Babul gagged a woman on the road. After taking dendrite Babul used to quarrel with Puspa. The dead

body was lying on the edge of the river. She did not see any injury on the dead body though only a blouse was seen on the dead body. She deposed

that she did not know who killed Puspa and how. The landlord of the rented house wherein Babul and Puspa were staying is PW7, Smti. Bisakha

Mandal. She stated that she lives 4/5 houses apart from the one rented to Babul. She did not know how their relationship was, at the time of

occurrence. Babul used to inhale dendrite and consume liquor.

PW8, Jadumoni Kataki, the Senior District Medical and Health Officer of Mangaldai CivilHospital who performed the postmortem on the dead

body of Puspa Sarkar and his deposition is reproduced herein below:

   “On being examined the dead body, the following have been traced out:

Dead body of a female with eyes and mouth closed oozing of blood from noses seen. There is swelling of left cheek with a circular tooth mark seen.

A small incised would also seen with oozing of blood. Both arms are seen by the side. Rigor Mortis was not present. Face, trunk, legs are swollen.

Fingers of the hand are pale, dry and mottled. Nails contain ramvant of mud. Abrasion in ring finger seen. There is no mark of any ligature on the

neck seen.

Thorax-Walls, ribs and cartilages intact, pleurae , larynx and trachea, right lung, left lung, pericardia, heart vessels are oedematuos and pale.

Abdomen-traces of mud in mouth oedematuos and pale. Stomach contained food stuff with no suspicious smell. Stomach contained gas and digested

food and faecal matter.

Scalp, skull, vertebrae- intact. Brain and spinal cord-slightly swollen. Liver-intact. Urinary bladder-empty. Uterus is 8 weeks pregnancy size with

product of conception.

This is all about the findings.

Opinion:-In my opinion, death is due to asphyxia as a result of ante-mortem drowning.â€​

Ext.3 is the postmortem report. Ext.3(1) is my signature and Ext.3(2) is the signature of the Joint Director of Health Services, Darrang, Mangaldai M.

Medhi. Cross-examination: Such type of injuries and symptom can be seen with a person is likely to be fallen on the water from a certain distance.

PW9, Sri Rajen Deka is the investigating officer of Mangaldai Police Station. He in hischief exhibited and supported the inquest report, charge

sheet, sketch map and the seizure list. The cross-examination of the said PW9 is relevant in the present case and as such it is reproduced herein

below:

“Cross-examination (XXX): PW1 Ratan Ray did not state before me that Puspa Sarkar was there at the house of her parents on account of

assault made by her husband for about six months and subsequently she was taken back by the accused. PW1 Ratan ray also did not state before me

that he saw the dead body of Puspa after one month from the date of her returning from the house of her parents sinking in the river. PW2 Arjun

Sarkar did not state before me that the accused threatened to go to jail after killing Puspa before him. PW2 also did not state before me that he found

accused Babul Sarkar in a state of head melancholy and on being asked he stated that he did not know as to where Puspa is. PW2 also did not state

before me that he had been to the house of the elder brother of Babul and they told him that they do not know as to whereabouts of Puspa. PW3

Dhiren Mandal @ Sarkar did not state before me that the accused Babul is found to have running towards the dead body and without being identified,

he is alleged to have said that it is the dead body of his Puspa. PW4 Saraswati Mandal did not state before me that the accused Babul was found

coming to the P.O. after making hue and cry that the dead body is none other than that of his Puspa. She did not state before me that she found Babul

loitering in and around the house after addiction of dendrite. PW5 Sefali Sarkar did not state before me that Puspa was insisted by the accused babul

for bringing money from her mother. She did not state before me that Puspa was assaulted by her husband by demanding money to be secured from

her parents. She did not state before me that Babul after being intoxicated, gagged the mouth of a woman of the locality. No magistrate was present

at the P.O. to perform the inquest.â€​

On the basis of the said evidence on record the learned trial court held that thedeceased Puspa Sarkar was subjected to torture by her husband

Babul by demanding money to be taken from her parents. The accused/appellant went to the house of PW1 and PW2 (the parents of Puspa) to

enquire whether Puspa had visited their house and on being given Rs.500.00 for purchasing rice etc. by them they visited the house of the accused in

the evening but Puspa was not found there and on the other hand, the accused/appellant was found roaming after taking dendrite unsteadily. The PW1

and PW2 found the dead body of Puspa lying on the riverine reef by embedding the abdomen into the sand soil and under such circumstances Babul

Sarkar, the accused/appellant identified the dead body of his wife Puspa without coming to the close quarter of the dead body and that is a reasonable

suspicion. It is also held that there is a positive evidence of the witnesses that the accused/appellant is in the habit of assaulting his wife and

demanding to bring money from her parents’ house. Babul Sarkar, the accused/appellant is a strong addicted person of intoxicated substance and

he being a carpenter by profession did not do any work and picked up quarrel with his wife Puspa Sarkar. The learned court below accepted the

statement of PW1 that the deceased Puspa Sarkar had to leave the society of her husband Babul Sarkar about 6 months back and she had to stay and

take shelter at the house of her parents. Subsequent thereto she was taken back by the accused/appellant with a promise not to torture the said

deceased Puspa Sarkar. This is on the face of the contradiction of the statement of PW1 as apparent from the cross-examination of PW9, the

investigating officer. Moreover, the said statement ought to have been made by the parents of Puspa Sarkar who are totally silent and even then the

learned court below considered the same. The learned court below also held that the accused/appellant behaved indecently with woman inasmuch as

no such victim was examined by the prosecution side in order to draw the presumption about the character of the accused/appellant. On the basis of

the said evidence the learned court below held the accused to be responsible for the death on the basis of the circumstances taken cumulatively.

We are unable to accept the said conclusion arrived at by the learned trial court. Thefact that the deceased was seen at about 6.00 PM on the

roadside by PW5 Sefali Sarkar and the subsequent visit of the accused/appellant to the house of PW2 and PW4 and the visit of the said PW2 and

PW4 to the house of the accused/appellant having come to know about the fact of missing of the deceased Puspa Sarkar, there remains a missing link

as to whether the act leading to the death of Puspa Sarkar was perpetrated by the accused/appellant. The dead body of Puspa Sarkar was almost

naked except a blouse on her body. The bangles which she were wearing were broken and there was swelling of the left cheek with a circular tooth

mark along with a small incise wound with oozing of blood on the right ring finger. Rigor mortis was not present nor there were any ligature marks on

the neck. The dead body arrived at 11.30 AM on 04.08.2015 and the postmortem was carried out at 11.45 AM on the same date as per the

postmortem report. Finally it is opined that the death was due to asphyxia as a result of ante-mortem drowning.

The prosecution side failed to bring on record the tentative time of visit of theaccused/appellant to the house of the PW2 and PW4. The evidence

of PW5, Sefali Sarkar stands unrebutted that the deceased was seen at 6.00 PM by the roadside. Moreover, the tentative time of the visit of PW2 and

PW4 to the house of the accused/appellant is also missing. But the fact remains that on their visit, the PW2 and PW4 did not find the deceased in the

house of the accused/appellant. On the other hand, it is on record that the accused/appellant went to the house of PW2 and PW4 and informed that

the deceased was not in the house of the accused/appellant. If that be so there must be at least an iota of evidence whether the deceased returned

back to the house of the accused/appellant after 6.00 PM when she was seen by PW5. The dead body was a naked one and if the swelling of the left

cheek with a circular tooth mark and the other injuries with oozing of blood and the mud found on her mouth and the nails of fingers in hands are

considered it can be concluded that there was violence just prior to the death of the deceased and the said violence cannot be brushed aside by simply

holding the death as a drowning case. The element of violence before her death leading to the deceased stripped naked must definitely lead to some

scuffle and that ought to have led to shouting requiring help by the deceased. None of the neighbours supported such fact of shouting for help which

shows that the deceased Puspa Sarkar did not return to the house of the accused/appellant. The fact that she went missing must be accepted and

there is no further explanation required from the accused/appellant, as held by the learned court below as to how the deceased wife died. The fact

that the deceased came back to the house of the accused/appellant has not be proved by the prosecution side. Merely the accused/appellant is

addicted to inhaling of dendrite and consumed alcohol cannot be a ground for holding him to be the person causing death of Puspa Sarkar. In fact

there are no circumstances which have been proved beyond any reasonable doubt from which it can be presumed that the act of crime has been

carried out by none other than the present accused/appellant. The Hon’ble Apex Court in Shivaji Sahebrao Bobade and Another vs. State of

Maharashtra, reported in AIR 1973 SC 2622 laid the degree of the appreciation of evidence in criminal cases in order to arrive to the term

“Proofâ€​ as required under Section 3 of the Indian Evidence Act, 1872:

“19. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not

reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their

case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. 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 divides vague conjectures from sure conclusions.â€​

Now if we consider the said ratio of the Hon’ble Apex Court we found that the learnedtrial court failed to stick to the aforesaid principle and

rather swayed in favour of the prosecution side giving a go bye to the principle of criminal jurisprudence that the accused must be presumed to be

innocent until the prosecution has been able to establish the charge against him beyond reasonable doubt. We have already discussed that the learned

trial court failed to come to a conclusion establishing and proving such facts beyond any reasonable doubt on the basis of which the learned trial court

could presume the guilt of the accused/appellant and such facts consistent only with the hypothesis of the guilt of the accused.

Accordingly, we set aside the judgment and order of sentence passed by the learnedtrial court in Sessions Case No.200(DM) 2015 dated

23.6.2016.

The appeal succeeds. The appellant is set free from the conviction and order ofsentence so passed by the learned trial court.

We express our gratitude to the learned Amicus Curiae, Mr. Ramani Mohan Choudhuryin assisting this Court in conducting the appeal and a sum

of Rs.7,500.00 (Rupees seven thousand, five hundred) only be paid to the learned Amicus Curiae for rendering his valuable service in assisting this

Court in this Appeal as his professional fees.

Send back the LCR.