Bibhishan Mahato vs State of West Bengal

Asim Kumar Ray, J.—This Appeal is directed against the judgment, order of conviction and sentence dated 5.09.2006 passed in Sessions Trial No. 26 of 2006 arising out of Sessions Case No. 187 of 2006 by the Learned Additional Sessions Judge, 2nd Court, Purulia whereby the appellants have been sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 3000/-, each in default to suffer further rigorous imprisonment for three months for the offence punishable u/s 498A/34 IPC and also to suffer rigorous imprisonment for life for the offence punishable u/s 302/34 IPC. There is a direction that the said sentences shall run concurrently. The case of the prosecution in a nutshell is that on 3.9.2006 the victim Alomoni Mahato was given in marriage with the accused/appellant Bibhishan Mahato, son of appellants Laganchand Mahato and Chandmoni Mahato @ Baisakhi Mahato in the year 2000. Alomoni was subjected to torture both mentally and physically during her stay at her matrimonial home by the appellants. On 16.10.2005 the victim was found missing and her dead body was recovered on the next day on 17.10.2005 from a place which is 1/1� K.M. away from the matrimonial home.

F.I.R. was lodged by the father of the victim/P.W. 2 with Balarampur Police Station, Purulia. On the basis of that F.I.R. Balarampur P.S. Case No. 34 dated 17.10.2005 u/s 498A/302 of IPC was started. The case was investigated. On completion of investigation Chargesheet u/s 498A/302/34 IPC was submitted before the Learned Chief Judicial Magistrate, Purulia.

On completion of all the formalities, the Learned Chief Judicial Magistrate, Purulia committed the case to the Learned Sessions Judge, Purulia. The Learned Sessions Judge on receipt of the case transferred it to the Court of Learned Additional Sessions Judge, 2nd Court, Purulia for disposal. On receipt of the case on transfer, the Learned Additional Sessions Judge, 2nd Court, Purulia framed the Charge against the accused persons under sections 498A/302/34 IPC which was read over and explained to the accused persons/appellants to which they pleaded not guilty and claimed to be tried.

During trial 14 prosecution witnesses were examined and besides it some documents were exhibited. No one was examined from the side of the defence. Accused Persons/appellants were examined u/s 313 CrPC and on appreciation of the evidence the learned Court below passed the judgment, order of conviction and sentence impugned. So this Appeal.

Learned counsel appearing for the appellant has contended that there is no ocular evidence in this case. The case is based on circumstantial evidence. There is no evidence to the effect that there was any motive to commit the murder of the victim. There was no demand of dowry by the appellants and the F.I.R. maker/P.W. 2, father of the victim has also stated in his evidence that he gave no dowry at the time of marriage of his daughter. The relation between the family was cordial as there was exchange marriage between the families.

Except the evidence of the F.I.R. maker/P.W. 2, the evidence of the rest of the witnesses is nothing but hearsay evidence. Prosecution story is not believable, time of death has not been fixed through evidence. The prosecution has not discharged its burden as per demand of section 101 of the Indian Evidence Act.

To substantiate the submissions, learned counsel for the appellant has cited decisions reported in State (Delhi Administration) Vs. Shri Gulzari Lal Tandon, for the proposition of circumstantial evidence and motive and Gambhir Vs. State of Maharashtra, for the proposition of circumstantial evidence and time of death.

To counter the submission of learned counsel for the appellant, learned counsel for the State has contended that prosecution witness No. 2/the F.I.R. maker has stated about the case in details in course of his evidence and the evidence of that witness is being corroborated by the F.I.R. which is an exhibited document. The evidence of prosecution witness No. 1/brother of the victim has also corroborated the evidence of his father, that is P.W. 2. He has supported the judgment, order of conviction and sentence passed by the learned Court below.

We have considered the submissions advanced by the learned counsel of the parties. We have perused the evidence on record. The case of the prosecution was started on the basis of an F.I.R. claimed to have been lodged by P.W. 2, but we do not find any evidence from P.W. 2 that he himself lodged the F.I.R. In his cross-examination he has stated that he had no talk with police and he cannot say who informed the case, but we find that prosecution witness No. 11, the scribe of the F.I.R. has stated that he wrote the complaint as per instruction of P.W. 2. If we cross check the evidence of prosecution witness No. 11 with that of P.W. 2 we find no matching of evidence, with regard to instructions given to P.W. 11 who wrote the F.I.R. Therefore, the F.I.R. does not appear to be in sound place.

Prosecution witness No. 2, the father of the victim has stated in his evidence that his daughter was not well in her matrimonial home. The appellants sometimes stopped food to her and used to torture her mentally and physically. He at the same time has stated in his evidence that his son-in-law never demanded any money from him. There is no narration of the mode of torture meted out to the victim during her stay at her matrimonial home at the instance of the appellants. There is no other evidence from the other witnesses regarding torture to the victim at the instance of the appellants.

Besides the father of the victim, the brother and mother of the victim have been examined as prosecution witnesses. The brother had said in course of his cross-examination that he was not examined by police and the mother has stated in course of her evidence that she has deposed as per instructions and guidance. Therefore the evidence of the brother and mother cannot be taken for consideration for the purpose of using it against the appellants.

On perusal of the evidence of prosecution witness Nos. 4 and 5 as well as the evidence of mother, we find that the victim was in the habit of loitering in daytime as well as at night. All those witnesses that is prosecution witness No. 4, prosecution witness No. 5 and prosecution witness No. 8 have not been declared hostile by the prosecution. Therefore there is some sort of evidence on record to say that the victim was not mentally fit.

The evidence of the other witnesses that is of the Block Development Officer/P.W. 3 who held the inquest; prosecution witness P.W. 7; prosecution witness P.W. 9; prosecution witness No. 10; prosecution witness No. 12 and 13 are either hearsay or formal in nature.

The evidence of the doctor/prosecution witness No. 6 reveals that the cause of death was due to Asphyxia due to strangulation, ante-mortem and homicidal in nature. The strangulation was caused by a hard and blunt substance over neck. There is no seizure of any offending weapon alleged to have been used to strangulate the victim.

There is no evidence on record as to how the victim''s dead body reached the P.O. if she was murdered elsewhere prior to the disposal of her dead body from the place, wherefrom it was recovered and by what means. We say so as we do not find from the sketch map that there is a road by the side of the spot which might have been used to carry the dead body to that place.

The law regarding circumstantial evidence is well settled. When a case rests upon circumstantial evidence, such evidence must satisfy three tests:

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and

(iii) The circumstances, taken cumulatively, should form a 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.

The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

We do not find any substantive evidence to show that it is the appellants and appellants only who are the perpetrators of the crime and there is no other reasonable hypothesis which is inconsistent with their innocence.

Considering the aforesaid discussion, we are of the considered view that the evidence on record does not satisfy the ingredients of circumstantial evidence to rope in the appellants with that of the offence levelled against them.

The judgment, order of conviction and sentence dated 5.09.2006 passed in Sessions Trial No. 26 of 2006 arising out of Sessions Case No. 187 of 2006 by the Learned Additional Sessions Judge, 2nd Court, Purulia calls for interference and it is set aside.

In the result, the Appeal stands allowed and the same is disposed of.

The appellants Bibhishan Mahato, Lagan @ Nagen Chand Mahato and Chandmoni @ Baisakhi Mondal be released forthwith if not wanted in any other case.

Let a copy of this order be communicated to the Superintendent of the concerned Correctional Home, forthwith for compliance. Urgent certified photocopy of this order, if applied for, be given to the parties upon compliance with all requisite formalities.

Nadira Patherya, J.

I agree.