Gobinda Shil vs State Of West Bengal & Ors.

Jay Sengupta, J.

1 This appeal is directed against the judgment and order dated 28th August, 2003 passed by the learned Additional Sessions Judge, 3rd Court, Nadia in

Session Trial No. III of May 1999: Session Case No. 18 of July, 1998, thereby finding the accused Gobinda Shil guilty for commission of offences

punishable under sections 498A and 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine

of Rs. 1000/- only, in default to suffer further imprisonment for three months for the offence punishable under section 498A for the Indian Penal Code

and to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default to suffer further imprisonment for three months for the offence

punishable under section 302 of the Indian Penal Code, both sentences having to run concurrently.

It is germane to mention that in the present case initially five accused were arraigned in the trial including the present appellant. But, at the stage of

examination of PW14 the present appellant absconded. The Trial continued as against the other accused namely, Dipak Shil, Gopal Shil, Manik Shil,

Sadhana Shil and Beni Madhab Shil. They were the three brothers-in-law, the mother-in-law and the father-in-law, respectively of the victim /

deceased Barnali Shil (nee Pramanik). But, those other co-accused were acquitted from the charges by judgment and order dated 28th April, 2001

passed by the learned Additional Session Judge, 3rd Court, Krishnanagar, Nadia. Thereafter, the present appellant was arrested on 29th August, 2003

and the trial resumed as against him.

The Prosecution Case

On 31st March 1996 at about 9.15 hours the informant Sudeshna Pramanik (PW1) lodged a First Information Report regarding the murder of her

daughter Barnali. She stated that her daughter was given in marriage with the appellant Gobinda Shil about 5 years ago. After a few months her

husband and other-in-laws started torturing her mentally and physically for more dowries. The informant and others would often visit Barnali's in-laws'

place requesting them to resolve the issue. Suddenly, on 31st March 1996 at about 7.30 hours, they were informed that Barnali had been seriously ill.

They rushed to Barnali’s matrimonial home and found that Barnali was lying dead on a vacant land behind the latrine. A ligature mark was found

encircling Barnali’s neck and blood was oozing out of her mouth.

Investigation commenced. An inquest was done by the Investigating Officer (PW14) on 31st March 1996 at about 9.30 hours on the vacant land of

the appellant. PW 13 conducted the post mortem examination on the dead body on 31st March 1996 at about 10.30 hours and found that the death

was due to effect of strangulation, which was ante-mortem and homicidal in nature. After completion of investigation, a charge sheet was submitted

against the six accused including the present appellant under sections 498A, 302 read with section 34 of the Penal Code. Charges were framed

against the appellant and those five others under sections 498A, 302 read with section 34 of the Penal Code on 11th March, 1998.

The prosecution examined as many as 14 witnesses to establish its case. From the trend of cross-examination of the prosecution witnesses as well

as from the examination the accused under Section 313 of the Code, albeit a few near admissions, the defence case appears to be the denial of the

prosecution case.

The Evidence On Record

Upon scanning the evidence-on-record, it is found that the victim’s mother PW1 Sushama Pramanik, is the de-facto complainant. She is also a

witness to the inquest. She deposed that the accused used to assault her daughter mentally and physically for more dowries. She came to know this

from her daughter. When the victim used to be driven out, she would take shelter in her house. PW1 would take Barnali to the house of the accused

and request them to relent. Sometimes she gave some money to them. But, they would again drive her out. In the meantime two children were born to

Barnali. About a month before her death, Barnali was again compelled to take shelter in her mother's house. PW1 took her back to the in-laws' house

requesting them not to assault her. About 7/8 days before Barnali’s death, the appellant come to PW1's house and demanded Rs. 5000/-. She

assured to pay the sum when it would be possible. After getting information about her daughter's possible serious ailment, PW2 along with her brother

PW3, sister PW 4 and son PW 2 went to the house of the accused. While they were on their way, some persons told them that Barnali was killed and

was kept behind the privy of the in-laws' house. They rushed to the place of occurrence and found the daughter lying dead with injuries. Thereafter

they went to the Ranaghat Police Station and PW1 lodged the First Information Report, which was scribed by her sister PW4. PW1 also deposed that

one day the appellant had assaulted Barnali in her presence. But she could not specify the exact date and year of the incident. In the cross, she denied

that the appellant had told her about the victim's illicit mixing with one Krishnapada.

PW2 is the victim’s brother. He too mentioned about the assault on her sister for more dowry, as was stated by her sister. His evidence gives

out a motive behind the murder. He stated that about six months prior to her death, Barnali had told him as well as PW3 and PW4 that the appellant

had an illicit relationship with one Chhabi Shil, who worked in their weaving business. PW2 corroborated PW1 substantially. He too went with her

mother and found her sister lying dead with injuries behind the privy. He, like her mother, could not find the accused in their house. PW2 was also a

witness to the inquest. In his cross, he denied that the appellant was living separately from the other accused after marriage.

PW3 was a relation of the victim (‘meshomashai’). Besides supporting the case of torture due to dowry demand, he corroborated PW2 on

the question of illicit relation between the appellant and the said Chhabi Shil, as reported by the victim. Even he did not find the accused home after the

incident. In the cross, he denied that the accused were not staying in joint mess.

PW4 was an aunt to the victim and the scribe of the first information report. The victim had stated her about torture by the accused for more

dowries and about the illicit relationship of the appellant with Chhabi Shil. In her cross, she denied that the present appellant was residing in the same

mess with the other co-accused.

PW5, a Gram Panchayat member and a neighbour of the accused, turned hostile. He admitted his signature on a seizure list. In the cross

examination by the defence, he admitted that the present appellant was living separately from the other accused.

PWs 6 and 7, both employees of the appellant, turned hostile. But, in their respective crosses by the defence, they admitted that the present

appellant and the other accused lived in separate mess and houses.

PW8, another employee of the appellant, turned hostile. In the cross, he denied having any scandal with the victim.

PWs 9 and 10, two purported witnesses to the seizure of the offending rope from the pan of the privy, denied having been present at the time of

seizure, but admitted their respective signatures on the seizure list. They were both declared hostile.

PW11, another neighbour of the accused, turned hostile. But, in the cross by the defence, he indirectly admitted that the appellant was staying in

separate mess from the other accused.

PW12, a minor, only saw the dead body of the victim beside the privy of the present appellant.

PW13 was the doctor who conducted post mortem on the dead body of the victim on 31st March 1996. He found rigor mortis present in both

upper and lower limbs. There was a ligature mark completely encircling the neck, more prominent on the front side than at the back side, transverse in

nature with a bifurcation at the left side below. Tongue was protruded. In his opinion, death was due to the effect of strangulation, which was

antemortem and homicidal in nature.

PW14, an Assistant Sub-Inspector of police, only recorded the first information report.

PW15 was the investigating officer of the case. He held inquest, examined witnesses and made some seizures from near the place of occurrence.

On 7th April 1996, he arrested the appellant who made a confessional statement leading to the recovery of the offending rope. He submitted charge

sheet. He did not inquire into any of the love affairs that came up for consideration during investigation. PW4 stated to him that the appellant was

staying separately for 1 1/2 years. He did not examine any child of the appellant. One Shova Shil told him that she had heard the appellant's voice

from his house. But, she was not cited as a witness.

Submissions at the Bar

Mr. Prabir Majumdar, the learned Advocate appearing on behalf of the appellant submitted at the very outset that the present appellant was

standing on the same footing as the co-accused who had earlier been acquitted and therefore, is entitled to the benefit of such acquittal. Secondly, he

submitted that there was no evidence that the husband / appellant was present at the place of occurrence and went to sleep with the wife / victim.

Even the ingredients of section 27 of the Evidence Act for the recovery of rope were not satisfied. He further submitted that after about seven days

of the registration of the first information report, the same was sent to the learned Magistrate and as such, there was a suspicion that the first

information report was ante-dated. In any event, there was no direct evidence, but only circumstantial evidence in the instant case and that the chain

of circumstances was not complete. As regards demand for dowry, no specific time or date was mentioned. Only in the first information report, the

informant said that he saw assault on the victim. In fact, she deposed new facts after about three years. PW2 also improved upon his statement as

would be evident from the cross examination. In fact, he could not even remember a few things as would be evident from the deposition of the

investigating officer. The learned Advocate also submitted that on facts, it was quite improbable that the latrine would remain unused for so long and

offending rope would so easily be present there to be recovered after passage of quite some time. Even the rope was not placed before the post-

mortem doctor for his opinion about whether the crime could have been committed with it. The examination of the accused under section 313 of the

Code was defective too. The question number 5 was bad as there was no evidence that the rope was made of jute so as to warrant a question with

suchqualification.

Mr. Saibal Bapuli, the learned Additional Public Prosecutor submitted that as per PWs 1, 2, 3 and 4, the accused lived separately with the victim.

The appellant absconded immediately after the occurrence and then again at the trial stage. PW1 stated about the mental and physical torture. PW2

supported the first information report, but there was a departure from the first information report as regards specific demand for dowry. PW3

supported PWs 1 and 2 and PW4, in turn, supported PWs 1, 2 and 3. Moreover, hostile witnesses did not necessarily render the prosecution case

fatal. PW13, the post-mortem doctor, clearly supported the prosecution case and termed the death as homicidal. The investigating officer also deposed

that the couple was staying in a separate mess.

After conclusion of arguments, the learned Advocates for both the parties filed copies of judgments supporting their respective cases. The

appellant relied on (i) Bahadul @ Ghanshyam Pradhan vs The State ofOrissa, AIR 1979 SC 1262 at paragraph 4; (ii) Biswaranjan Midhya

Chowdhuryvs The State of West Bengal, (2016) 1 CCrLR (Cal) 473 at paragraphs 11 and 12; (iii) Nesar Ahmed & another vs The State of Bihar,

AIR 2001 SC 2416 at paragraphs 9 and 10; (iv) Lallu Manjhi& another vs The State of Jharkhand, 2003 SCC (Cri) 544 at paragraph 14. On the other

hand, the State relied on (i) SurajitSarkarvs The State of West Bengal, (2012) 12 JT 138 at paragraph 54; (ii) Mallikarjun Ningappa Ragativs The State

of Karnataka, (2008) 4 KarLJ 509 at paragraph 34; (iii) M.Saravana @ K. D.Sravanavs The State of Karnataka, (2012) 6 JT 565 at paragraph 9.

Reasoning

I have heard the submissions of both the parties, gone through the evidence and other materials on record and perused the decisions cited. I now

venture to discuss the questions of facts and law and thus, try to cull them for arriving at a just decision.

The prosecution case is based purely on circumstantial evidence. Therefore, at the outset it is necessary to find out whether the chain of

circumstances pointing towards the guilt of the appellant is complete or not.

The precursor to the events is the motive given by PWs 2, 3 and 4 that there was trouble brewing between the couple - the victim and the

appellant, over the illicit relationship between the appellant and his staff one Chhabi Shil. There is no strong denial by the defence on this score. The

other inkling of a motive vis-Ã -vis the illicit relationship between the victim and PW8 is provided by the investigating officer PW15 coupled with the

denial of any scandalous relation made by the hostile witness PW8 himself. Even if one dismisses the second of the twin pronged motive as

insufficient in terms of quality evidence, one has to accept the first part that is to say, the evidence regarding appellant's indiscretions as sufficient

motive for murder.

The most important coupling in the chain of circumstances is the presence of the accused / appellant at the place of occurrence. The place of

occurrence is a place behind the appellant's privy. It is predominantly evinced from depositions of PWs 1, 2, 3 and 4 that the couple stayed together in

the house of the appellant. The privy or the latrine in question belonged to the appellant.

PW4 and albeit hostile, PWs 5, 6, 7 and 11 admitted in their cross examinations that the appellant was living in a separate mess from the other

accused. In Ramkrishna vs The State of Maharashtra, (2007) 13 SCC 525, the Hon'ble Apex Court held that if found credible, evidence of a hostile

witness can very well be relied upon by a party. The reliance of the learned Advocate for the State on M. Sarvana's Case (supra) in this regard is also

quite apt.

It was within the special knowledge of the appellant as to how his wife's dead body came to lie at a place that was under his control and

supervision. Section 106 of the Evidence Act would squarely applies here. But, the present appellant neither came up with any explanation in this

regard nor could prove any alibi. The Hon'ble Supreme Court in Ganeshlal vs The State of Maharashtra, (1992) 3 SCC 106 held that “… When the

death had occurred in their custody the appellant is under an obligation in Section 313 CrPC statement at least to give a plausible explanation for the

cause of her death. No such attempt was even made excepting denying the prosecution case. These facts completely are inconsistent with the

innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife…â€​.

The reliance of the learned Advocate of the appellant upon the ratio in Biswaranjan Midhya Chowdhury's Case (supra) does not help as the facts

in the two cases are quite distinct. In that case, the investigating officer was crossed on the point of investigation and he admitted that he had not

made any enquiry into the fact whether the accused therein was in his house at the relevant point. Here, the case is not so.

Immediately after the fatal incident, the appellant was found absconding from the scene of occurrence. He again absconded for a good many

years during trial. True, a mere absconding of the accused need not necessarily implicate him any further in a case. ‘Even an innocent man may

escape in order to avoid arrest’. It is settled law that absconding is relevant evidence, but its value depends on the attending circumstances.

Nonetheless, it may act as a link in the chain of circumstances against the accused, especially if the same remains unexplained as in the instant case.

A subsequent attempt to evade the due process of law at the trial stage has only aggravated the already incriminating circumstance.

It is abundantly clear that the dead body of the victim Barnali was found behind the appellant's privy. Several witnesses saw it. It is further clear

from the evidence of the post mortem doctor PW13 that the victim was murdered by strangulation.

Now, so far as the recovery of the offending rope is concerned, the same was seized by the investigating officer from inside the pan of the

appellant's privy purportedly at the appellant's instance. Although hostile, PWs 9 and 10 admitted their respective signatures on the seizure list for the

rope. The signature of the accused was also present in the said seizure list. At the same time it is true that no leading statement of the appellant was

placed on record as regards the recovery of the rope. This cannot be treated as a recovery within the meaning of section 27 of the Evidence Act. But,

the conduct of the appellant may very well be treated as a circumstance relevant under section 8 of the Evidence Act. The Hon'ble Supreme Court in

A. N. Venkatesh & anothervs The State of Karnataka, AIR 2005 SC 3809 held that “… The evidence of the circumstance, simpliciter, that the

accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was

exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously

with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (AIR 1979 SC 400).

Even if we hold that the disclosure statement that made by the accused appellants (Ex. P14 and P15) is not admissible under Section 27 of the

Evidence Act, still it is relevant under Section 8…â€​

So far as the decision relied upon by the learned Advocate for the appellant in Bahadul's Case (supra) is concerned, the facts are clearly

distinguishable from the instant case. There a recovery was made from beneath a cot and there was nothing to show that the accused had concealed

the article in a place which was known to him alone. This cannot be said of the present recovery of a rope from inside the pan of the appellant's privy.

The ratio is thus distinguishable in the present set of facts.

On the other hand, the decision in Mallikarjun Ningappa Ragati's Case (supra) on the veracity of recovery of an article by an investigating officer

when the ‘Panch’ witnesses turn hostile, as relied upon by the learned Additional Public Prosecutor, is quite distinguishable on facts.

The appellant's contention that the rope could not have remained there for so long and that the privy could not have remained unused for a week is

without any basis. Rather, since the appellant was absconding, it was most likely that his privy would remain unused for such period.

Quite interestingly, in his answer to question no 4 under section 313 of the Code, the appellant answered that ""Sir, when blood was oozing out, she

died"". This implies that at least the appellant was present there when the victim died. Then he absconded. So, it was for him to explain all these

circumstances appearing against him, which he failed to. Although his near admissions in his examination under section 313, strictly speaking, may not

be used against him, yet his failure to explain such incriminating circumstances may act as a link to the overall chain of circumstances.

The chain of circumstances is thus complete and is indubitably pointing towards the guilt of the appellant on the question of murder of the victim.

Nesar Ahmed's Case (supra) as referred to by the learned Advocate for the appellant lays down a well-established principle of law and quite

commensurately, each and every circumstance as discussed above is found to have been duly proved here.

As regards the other relevant points agitated, it may be germane mention in this chronology that a mere delay in sending the first information report

to the learned Magistrate may not be fatal to the prosecution case. It is more so when nothing is placed on record to show any concerted attempt from

any quarter to falsely implicate an accused.

On the question of non-examination of the two children of the victim, one must admit that this is a flaw in the investigation of the case although one

wonders what those children, evidently below the age of 5 years, would have deposed. There were other defects too. For instance, the witness Shova

Shil who, as per PW15, heard the appellant's voice from his house was not examined. But, in view of the other evidence on record as discussed

earlier, such non-examination is not fatal to the prosecution case.

Surajit Sarkar's Case (supra) as relied upon by the learned Additional Public Prosecutor lays down an established principle that a defective

investigation may not always be fatal to the prosecution case.

The learned Advocate for the appellant relied on Lallu Majhi's Case (supra) and contended that the fact that accused was absconding was not put

to him in his examination under section 313 of the Code. Lallu Manjhi's Case (supra) broadly reiterated that circumstances not put to the accused in

examination under section 313 of the Code cannot be used against him. But, the facts are quite different in the two cases. There were several

infirmities in the prosecution evidence too in that case.

In the present case, the appellant had all through, except for an incriminating hiatus, participated in his trial. He knew the case well and was well

aware of him absconding as he had been the performer of such act. So, there was no prejudice caused to the appellant in the instant case by not

posing such question regarding him going absconding. Every omission to put a question does not amount to prejudice. In this regard, reliance is placed

on the ratio laid down by the Hon'ble Apex Court in Alister Anthony Pareiravs The State of Maharashtra, AIR 2012 SC 3802. The relevant portions

are quoted below:

“59. The High Court in this regard held as under:

“29………..The salutary provision of Section 313 of the Code have been fairly, or at least substantially, complied with by the trial court, in the

facts and circumstances of this case. The real purpose of putting the accused at notice of the incriminating circumstances and requiring him to offer

explanation, if he so desires, has been fully satisfied in the present case. During the entire trial, copies of the documents were apparently supplied to

the accused, even prior to the framing of the charge. After such charge was framed, all the witnesses were examined in the presence of the accused

and even limited questions regarding incriminating material put by the Court to the accused in his statement under Section 313 of the Code shows that

the entire prosecution case along with different exhibits was put to the accused. He in fact did not deny the suggestions that the witnesses had been

examined in his presence and he was aware about the contents of their statements. All this essentially would lead to only one conclusion that the

contention raised on behalf of the accused in this regard deserves to be rejected. While rejecting this contention we would also observe that the

admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the

case of the prosecution proved on record can also be looked into by the Court in arriving at its final conclusion. It will be more so when explanation in

the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross-examination of the crucial

prosecution witnesses was conducted on this line.â€​

We are in agreement with the above view of the High Court.â€​

Although on the question of the offence under section 302 of the Penal Code, sufficient evidence have been adduced against the present appellant

to distinguish his case from that of the other co-accused who had earlier been acquitted, on the question of the offence under section 498A of the

Penal Code, the evidence seems to be quite similar and inchoate against him as against the other accused. PW1’s claim of a single instance of

assault by the appellant on the victim is also devoid of specifics.

Besides the other evidence pointing towards the guilt of the present appellant like his motive, him absconding twice, recovery of article, a prime

fact that distinguishes his case from that of the other accused is the fact that he was staying with his wife in a separate mess.

In view of the above discussions, I hold that the prosecution case for the murder of the victim has been proved beyond any reasonable doubt as

against the present appellant. But, the case of inflicting cruelty upon the victim as contemplated under section 498A of the Penal Code could not be

proved against him. Therefore, I uphold the conviction and sentence of the appellant under section 302 of the Penal Code as ordained in the judgment

and order dated 28th August, 2003 passed by the learned Additional Sessions Judge, 3rd Court, Nadia in Session Trial No. III of May 1999: Session

Case No. 18 of July, 1998, while I set aside his conviction and sentence passed under section 498A of the Penal Code vide the said order.

The appeal is thus partly allowed. A copy of the judgment along with the Lower Court Records may be sent down to the learned Trial Court

forthwith for information and necessary action.

Urgent certified photocopies of this judgment may be delivered to thelearned Advocates of the parties, if applied for, upon compliance of all

formalities.