Ratan Das vs The State of West Bengal

Indrajit Chatterjee, J—I respectfully differ with the findings of my sister Judge in which she has been pleased to acquit the present accused convict in respect of both the charges punishable under Section 302 and Section 201 of Indian Penal Code (hereinafter called as the Code). Myself prefer to write a separate judgment.

The prosecution case as unfolded at the time of trial can be stated in brief thus:

"That one suo motu FIR was lodged by one Dhruba Pradhan, Sub-Inspector of police, then attached to Kalchini Police Station within the district of Jalpaiguri on 09.04.1999 at 10.10 hours against the appellant who was one ASI of police who used to reside in the compound of the police station, giving rise to Kalichini P.S Case No. 23 of 1999 under Section 302 and 201 of the Code. Before the FIR was lodged one UD case No. 07/1999 dated 08.04.1999 was started at 21.20 hours."

This witness Dhruba Pradhan also held inquest on the dead body of the victim, Alo Das aged 38 years, the wife of the appellant at the quarters of the appellant. Unfortunately, for the prosecution this Dhruba Pradhan was not examined by the public prosecutor who conducted the prosecution case before the trial court and naturally the inquest report and the F.I.R. were not marked as exhibits. PW 6 was acquainted with the hand writing of that Dhruba Pradhan but he only proved his endorsement in the F.I.R.

On the transfer of the first I.O. the further investigation of this case was taken up by PW 7 who practically did nothing but submitted charge sheet against the accused for the offence punishable under Section 302 and 201 of the Code. The case was committed before the Sessions Judge, Jalpaiguri and Sessions case No. 102/03 was registered wherefrom it was transferred to Additional Session Judge, Alipurduar, of the same district. The charge was framed in respect of Sections 302 and 201 of the Code to which the accused pleaded not guilty and claimed to be tried and Sessions Trial No. 45/2003 of that court commenced.

After registration of the case this PW 6 who was then the Officer-in-Charge of the said police station took up the investigation. During the course of investigation he prepared a sketch map with index which was marked as exhibit 7 and seized as per seizure list PM blood, one petty coat, one blouse of the victim on 11.04.1999 as produced by one constable of that police station after PM examination was done. He also seized as per seizure list dated 09.04.1999 at 11.45 hours from the jungle just back side of the quarters of the appellant, one Mosquito curtain stand made of Segun wood which was broken into four pieces. He also seized as per seizure list dated 09.04.1999 at 12.05 hours some blood strain wearing apparels of the victim which was drenched into full bucket of water and also seized one wooden chair with a minute drop of blood stain on the sitting place. He forwarded the dead body for post mortem examination. The I.O. of this case also seized one full sleeve shirt with stains of blood on different portions on the front as per seizure list dated 09.04.1999 at 11.30 hours from the PO, that is the quarters of ASI Ratan Das, which was wearing at that time. The expert opinion was sought from the F.S.L. and Serologist as regards the seized items like full shirt, cotton wool and earth. The Senior Scientific Assistant of the Regional Forensic Science Laboratory, Jalpaiguri (PW 8) reported that no blood could be detected on the wooden post (Mosquito net Stand) but blood could be detected on rest of the four exhibits that is full shirt cotton wool and earth. The Serologist submitted report dated 20.05.1999 in which she opined that the blood stains on those items (about which I have already told) was disintegrated and their origin cannot be determined.

The doctor after post mortem examination opined that the death was due to the effect of injuries, anti-mortem homicidal in nature. The doctor noted as many as seven injuries:

"1) Incised wound 1 1/2" X 1 1/2" mid line forehead X bone deep with cut marks of vertex,

2) Contusion brownish black found over left side face adjacent to lower eye lid (left),

3) Contusion brownish black 1/2" X 1/4" over midline chin.

4) Incised wound 2" X 1/2" X muscle deep over breast left side upper part.

5) Contusion dark brownish black 4" X 3" over right leg.

6) Penetrating wound 1 1/2 X 1 1/2 X muscle deep over medial aspect of left thigh.

7) Dark brownish black contusion measuring 5" X 3" over midline & right side abdomen over right side lumbar region & hypogastrium."

The prosecution examined in all eight witnesses and proved some documents and produced the broken mosquito net stand and the shirt before the trial court.

Accused was examined under Section 313 Cr.P.C. twice firstly on 12th of May, 2004, in which accused admitted that Alo Das was his wife. In his examination under Section 313 Cr.P.C. on 15th December, 2004, the accused admitted that he use to reside with his wife and his children in Kalchini Police quarters which was in the police compound. The accused also admitted that he was enjoying three days leave at the time of the incident and on the date of the incident he was arrested from kalchini P.S. compound. No defence witness was adduced and no specific defence case was made out. The accused before the trial court pleaded his false implication.

The learned trial court after considering the evidence both oral and documentary found the accused guilty on both the charge as per order dated 18.01.2005 and sentenced him to suffer imprisonment for life and also sentenced to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 of the Code and the said appellant was further sentenced to suffer imprisonment for three years and fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months for the offence under Section 201 of the Code. As against this order of conviction and sentenced the present appeal has been preferred.

At the time of hearing of argument it was submitted by the learned lawyer appearing on behalf of the defence that in this case the chain of circumstance has not been proved to fix up the guilt on the appellant. He cited the following circumstances which may be considered by the Court.

"I. Prosecution case was based on extra judicial confession but unfortunately for the PWs 1, 2 & 3 on whom the story of extra judicial confession based were declared hostile,

II. That there is no independent witness to support the involvement of the accused appellant,

III. Seizure is doubtful as no label was put and that PW 5 deposed that he signed on the seizure list at the P.S.,

IV. Even though the case is based on circumstantial evidence no motive in this case has been ascribed,

V. None saw accused appellant and the victim together on that date,

VI. Post-mortem report was conducted not on the dead body of the victim as he submitted that as per PM report the age of Alo Das was 18 years whereas as per the inquest the age of the victim Alo Das was 38 years,

VII. That there are number of discrepancies between injuries sustained by the victim as noted in the FIR and the PM report. He laid stress on the ligature marks found by that D. Pradhan while writing the FIR.

VIII. That as per the report of the FSL no blood could be detected on the mosquito net stand,

IX. The F.I.R maker who is also inquest report maker has not been examined and so also the doctor.

X. That the chain is not complete, and,

XI. That the conduct of the accused that he did not flew from the spot and was arrested on 09.04.1999."

He also cited three decisions of the Apex Court as reported in (i State of Gujarat Vs. Kishanbhai etc., (2014) AIRSCW 557 : (2014) 1 JT 508 : (2014) 1 SCALE 177 : (2014) 5 SCC 108 (ii) Kanhaiya Lal Vs. State of Rajasthan, (2014) AIRSCW 1828 : (2014) CriLJ 1950 : (2014) 4 JT 165 : (2014) 2 RCR(Criminal) 180 : (2014) 3 SCALE 598 : (2014) 4 SCC 715 and (iii) Majendran Langeswaran Vs. State (NCT of Delhi) and Another, (2013) 7 AD 401 : AIR 2013 SC 2790 : (2013) CriLJ 3848 : (2013) 3 JCC 2199 : (2013) 9 JT 539 : (2013) 7 SCALE 649 : (2013) 7 SCC 192 .

Let me start with by answering the decision cited made by the defence in Kanhaiya Lal (supra). The fact before the Apex Court can safely be differentiated from the present case before me. In that case the victim was not the wife of the appellant. In that case before the floor of the Apex Court the deceased Kala was last seen with the appellant to purchase liquor and thereafter he was not seen and the dead body of Kala was recovered from a well. The villagers found Maflar, Shoes and Tobacco pouch floating in the well of accused appellant. In that case motive was ascribed but that was not accepted by the Apex Court. The theory of last seen together was also not believed by the Apex Court on the ground that it was a singular piece of circumstantial evidence against him. The Apex Court held that the conviction of appellant cannot be maintained merely on suspicion. But in the instant case before me the appellant was the husband of the victim and the dead body was found inside the room of the police quarters and admittedly the husband and wife used to share the said police quarters.

In Majenderan Langeswaran (supra) the incident of murder happened inside one ship and one other human blood stained knife with matching blood group of the deceased was also recovered from the blue coloured boiler suit worn by the deceased at the time of the incident. This being the case before the Apex Court it disbelieved the version of the prosecution. I admit that in a case of circumstantial evidence the circumstances must lead to the conclusion that accused is the only one who had committed crime and none else. Thus, on fact both these decisions will not apply.

In the instant case both the F.I.R and the inquest reports were not proved as S.I. Dhruba Pradhan was not examined as PW. Thus the prosecution could not get advantage of two vital documents. This Sub-Inspector of Police Dhruba Pradhan was practically not summoned by the Trial Court. There is nothing in the lower court record to convince this Court that even if the summon was issued that reached the said S.I. Thus, there was no question of issuance of witness warrant against the said witness. I am not unmindful of the order dated 05.04.2004 of the learned Trial Court where the learned prosecutor suddenly closed the prosecution case without examining this vital witness and he submitted before the court that the prosecution was not willing to adduce any further witness.

The post-mortem report was marked as exhibit on consent and naturally under Section 294 of the Cr.P.C. It was faintly argued by Mrs. Anusuya Sinha appearing on behalf of the prosecution submitted that the court cannot take into consideration the opinion portion of that post-mortem report as it was marked on consent. She submitted that evidence against the accused appellant was not convincing to secure his conviction before the trial court.

The post-mortem report had to be forwarded to the doctor to prepare the same as handwriting was not legible and the said doctor thereafter submitted a copy of the post-mortem report written in block letter and his opinion and nothing the injuries. Nothing was argued by the defence or by the prosecution regarding this endeavour made by the court in the interest of justice under Section 482 of the Cr.P.C.

Now the question is whether one admitted document marked as exhibit on consent cannot be taken into evidence. I am not unmindful of the Full Bench decision of the Hon''ble Karnataka High Court as reported in Boraiah alias Shekar Vs. State, (2003) CriLJ 1031 : (2003) 3 KCCR 152 SN wherein the Full Bench decided that in such a case the court can very much rely on the entire contents of the document. Thus, I am of the considered view that the learned Trial Court rightly relied upon that post-mortem report which was marked as exhibit on consent as per order dated 05.04.2004.

Let me now consider the evidence on record I have already stated that the evidence of PWs 1, 2 and 3 are of no credit who were all declared hostile. Thus, I am to start from PW 4, Suresh Sha Sankar (CSW-2) the evidence of this witness has two facets. He is a seizure list witness in respect of four seizure lists that is the broken mosquito net stand, blood stained wearing apparel of the victim, wooden chair, some other wearing apparels of the victim, one coconut rope and also regarding the seizure of full sleeve shirt which was in the body of the accused appellant. This witness also deposed that Alo (the victim) died about 5 years ago in her quarters and his house is about 40 meters from the police station and the quarter. I have gone through his cross-examination. Except the fact that the I.O. did not put any label over the seized articles no question was put to the said witness to impeach his valuable evidence. It is clear from his evidence that he saw the dead body in lying condition having a cut injury on the head. No denial was taken to impeach this evidence. This witness also signed on the inquest report.

Now let me turn to the evidence of PW 5 i.e. Raj Kumar, his house is situated within 200 feet from the police station and at the material point of time he used to reside there. This witness deposed that police came to the place of occurrence and asked him to go there and showed him the dead body and he signed on the inquest report. This witness is also a witness to the seizure like PW 4. As per the sketch map (Exhibit-7) which is not in dispute the P.O. is ''B'' which has been depicted as the "Bed room where dead body was lying". This witness deposed "the dead body was lying on the cot and there was an injury on her forehead". It is true that the witness signed on the seizure lists at the police station. This cannot take out the evidence of this witness what he saw on that date. In his cross-examination he also deposed "I saw the dead body of Alo Das in the house of Ratan Das". There is nothing on record to impeach the credibility of this witness.

P.W.6. is the first I.O. of the case. Here the accused/appellant was one ASI of police and naturally the investigation was not conducted that fairly, as it would have been. It was partial so that the appellant may gain out of it. But, I must say that this defective investigation did not go to the root of this case to give benefit to the appellant. Let me now say what this witness deposed before the trial court implicating the accused appellant.

He deposed that during investigation he visited the P.O. that is the quarters of ASI Ratan Das and prepared the sketch map with index, seized full shirt which Ratan was wearing and the shirt was stained with blood on different portions, he prepared a seizure list regarding that and took signature of the accused. He also seized one decorated mosquito net stand which was broken in four parts which were found in the backside jungle of the quarters. This I.O. did not take the accused into police remained and did not try to recover the sharp cutting weapon even though the victim suffered bleeding injuries, which was not possible by that mosquito net stand.

It is clear from his evidence that he also seized one printed green white saree which was drenched in "full of water of a bucket", as per seizure list dated 09.04.1999 (Ext 3/2) and also seized one petty coat and one red colour blouse as per seizure list dated 11.04.1999 (Ext. 8) as produced by constable, which was done very naturally after the post mortem examination. This witness forwarded some of the seized articles including the full shirt stained with blood and as per report of the FSL (Ext. 9) as prepared by P.W 8 blood was detected on the shirt which was marked as made Ext. I.

It is true that as per report of the Serologist and the Chemical Examiner dated 20.05.1999 the stains of blood was disintegrated and their origin cannot be determined. PW 8 deposed in answer to a court question that there is no specific time for disintegration of blood. It is nobody''s case that blood which appeared on shirt was not human blood. No suggestion was given to PW 8 that the blood found on the shirt was not human blood. Every case is to be judged on its own fact. The signature of the appellant was taken only on one seizure list that is the seizure list as regards seizure of the shirt as deposed in cross by PW 6. This witness was recalled and he deposed that on the relevant date accused Ratan was enjoying leave that is for three days for joining DIB. He also deposed that the son and daughter of accused Ratan were not in the P.O. as they went to Birpara.

PW7 is the second I.O. who deposed on recall by the prosecution that the appellant was arrested from Kalchini P.S compound and he used to reside in his quarters. He also deposed that the appellant did not inform the police station regarding the death of his wife. There is nothing in his cross-examination to discredit this witness.

Thus what has come out from the evidence of the P.Ws and answers given by appellant in answer to question put to him under Section 313 Cr.P.C. can be summarized thus;

"1. That the appellant and the victim, Alo Das, was husband and wife and they used to reside in the police quarters of Kalchini Police Station.

That the accused was enjoying leave for three days and he was arrested from Kalchini Police Station compound.

That the P.O. is the police quarters where the couple used to reside.

That on that night the couple were alone as that children went to Birpara and that they were having two children.

That the age of the appellant on the date of the incident was 48 years as he declared his age to be 53 in the year 2004 when he was examined under Section 313 Cr.P.C.

That from the version of two independent witnesses that is PWs 4 and 5 it was apparent that the dead body was found inside the P.O. that is the quarters allotted to the appellant with injury on her head or forehead. It is matching with the expert report of the P.M. doctor.

That one blood stained shirt was seized from the body of the appellant by PW 6 as per seizure list dated 09.04.1999 at 11.30 hours (Ext. I/2) on which this appellant duly signed.

That blood was found in the shirt of that accused which was seized from his body soon after the FIR was lodged."

I admit that the case of the prosecution as regards the extra judicial confession could not take off as the prosecution, witness Nos. 1 to 3 turned volte-face. The argument of the defence that there was no independent witness to support the case of the prosecution cannot be supported as the prosecution examined two independent witness that is PW 4 and PW 5.

Relying on the decision of the Kishanbhai (supra) it was the argument of the learned defence counsel that the shirt allegedly seized from accused appellant or the wearing apparels of the victim should have been sent for DNA profiling. I have gone through the said decision of the Apex Court the said observation was made as regards scientific investigation to cure latches on the part of the investigating agency in very heinous and sensitive matter and sensitive cases. This incident took place as back as in the year 1999 and at that point of time DNA was practically unheard of in India. This argument of the defence that the shirt or the wearing apparels of the victim should have been forwarded for DNA examination cannot be any ground in favour of the accused.

It is true that no label was put on the seized items but it cannot be said that on that ground the entire seizure can be made doubtful. Considering the cross-examination made by the defence to impeach the credibility of the witnesses, I reiterate that the seizure list witnesses duly withstood the test of cross-examination.

Now as regards motive. It is true that considering the entire case I fail to gather any motive on the part of this accused appellant to finish his wife. This Court is not unmindful of the decision of the Apex Court as reported in Gurcharan Singh and Another Vs. State of Punjab, AIR 1956 SC 460 : (1956) CriLJ 827 wherein the Apex Court observed that where the positive evidence against the accused is clear, cogent and reliable the question of motive is of no importance. In another decision as reported in State of Karnataka Vs. David Razario and Another, AIR 2002 SC 3272 : (2002) CriLJ 4127 : (2002) 7 JT 283 : (2002) 6 SCALE 500 : (2002) 7 SCC 728 : (2002) 2 SCR 419 Supp wherein the Apex Court held that where credible evidence exists on record to establish guilt of the accused, it is not necessary to find out the motive of the crime.

It is true that none saw the victim and her husband together on that date. The incident happened at about 09:20 P.M. in a desolated village like Kalchini and I can take judicial notice of the fact that it was almost dead of night in that area at 09:20 P.M. The relationship between the victim and the accused appellant was that of husband and wife. I can safely presume that they were inside the house and as such I am not to get assistance of any witness who saw them together. Here inference can very much be drawn particularly when the accused appellant was on leave on that date and he was arrested by PW 6 soon after the FIR was lodged from the P.S compound itself.

It is true that there is palpable disparity as regards the age of the victim as noted in the post-mortem report. The victim is Alo Das unfortunately the postmortem doctor did not mention the name of her husband in the P.M. report. This P.M. examination was done on 10th of April, 1999 in relation to Kalchini P.S. Case No. 23 of 1999 having P.M report 394 of 1999. The age of Ratan Das was 53 years at the time of conclusion of trial. Thus, I can say that the age of Alo Das cannot be 18 years to be the wife of Ratan Das whose age was at the time of the incident 48 or 49. It was nobody''s case before the Trial Court that some other dead body was put before the doctor for her post-mortem examination instead of the actual victim of this case. It is nothing but an argument just to make a mountain out of a mole. I should not forget that Alo Das had two children. It is true their age is not there in the record but Alo Das at the age of 18 cannot be the mother of such two children who could go to Birpara keeping their parents at their home. Thus, I find no merit in the argument of the defence as regards this.

As the FIR was not marked as exhibit there is no question of relying the same in this case. Whatever injuries the FIR maker noted in the inquest report or the FIR is not legal evidence. What the FIR maker saw including the marks on the neck of the victim is also not legal evidence. Thus, the claim of discrepancy of the FIR and the post-mortem as regards ligature marks and numbers of injuries cannot travel too much to show anything positive in favour of the defence.

It is true that no blood was detected in the weapon of offence that is the mosquito net stand. It may be noted that it was divided into four (4) pieces may be due to assault on the victim black-and-blue. I have gone through the post-mortem report. (The injuries sustained by the victim were mainly marks of cheating. There was only one incised wound 1 1/2" x 1 1/2" on the mid line forehead into bone deep with cut marks of vertex that was the only injury which could have caused some bleeding. Thus, it was not expected with certainty that the weapon of offence could get into touch of blood. Thus this argument that the serologist could not detect blood on the weapon of offence cannot make that mosquito net stand to be not the weapon of offence. Later on I shall come as to whether this mosquito net stand was the only weapon of offence.)

It is true that the FIR maker was not examined, it was the fault on the part of the prosecuting agency but simply because the FIR was not proved the entire story of the prosecution cannot fall on the ground. The conduct of the public prosecutor in closing the case without examining this vital witness is deprecated.

I am not at one with the defence that the chain was not complete and the accused is entitled to get the benefit of doubt. This Court is not unmindful of the conduct of the accused that he did not flee away from the spot and he was arrested on 09.04.1999 itself from the P.S. compound. This cannot be a mitigating factor and also cannot counter the other evidence on record about which I have discussed.

It is true that both the IO of this case did not investigate this case properly. Here I want to note how they acted in favour of the accused, who was admittedly their junior colleague.

"1. That he did not try to recover the second weapon of offence through which this accused appellant caused two incised wounds and one penetrating wound, even though the accused was arrested soon after the lodging of the FIR.

That the second IO did not cite constable No. 476 K. Bhutia as a prosecution witness in the charge sheet. This K. Bhutia identified the dead body to the doctor. Very cleverly this IO thereby did not allow even the public prosecutor to mark as exhibit the challan vide which the dead body of the victim was taken from the place of occurrence to the dead house. Thus this vital document was withheld during the course of trial. The public prosecutor who conducted the prosecution before the Trial Court did not take any step to produce that vital document.

The first IO did not forward the other wearing apparels of the victim which was in a bucket to the FSL. Had those been produced before the FSL the court could have got from the report as to whether there was any stains of blood or whether there were cut marks on such wearing apparels to make the court doubly sure that sharp cutting weapon was used on that night."

The theory that the accused cannot get the benefit in cases of defects in investigation was considered by the Apex Court in its decision as reported in State of West Bengal Vs. Mir Mohammad Omar and Others etc., AIR 2000 SC 2988 : (2000) CriLJ 4047 : (2000) 9 JT 467 : (2000) 6 SCALE 148 : (2000) 8 SCC 382 : (2000) 2 SCR 712 Supp : (2000) AIRSCW 3230 : (2000) 6 Supreme 172 wherein it observed that castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation.

In another case as reported in Ambika Prasad and Another Vs. State of (Delhi Administration, Delhi), AIR 2000 SC 718 : (2000) CriLJ 810 : (2000) 1 JT 273 : (2000) 1 SCALE 219 : (2000) 2 SCC 646 : (2000) 1 SCR 342 : (2000) AIRSCW 253 : (2000) 2 Supreme 633 the Apex Court observed that in a case of defective investigation it would not be proper to acquit the accused, if the case is otherwise established conclusively. A criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. 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. One is important as the other. Both are public duties which the judge has to perform.

Much was argued by the defence that the serological test could not detect the origin of the blood due to disintegration. On this point I like to refer two decisions of the Apex Court as reported in State of Rajasthan Vs. Teja Ram and Others, AIR 1999 SC 1776 : (1999) CriLJ 2588 : (1999) 2 Crimes 45 : (1999) 2 JT 279 : (1999) 2 SCALE 169 : (1999) 3 SCC 507 : (1999) 2 SCR 29 : (1999) AIRSCW 1514 : (1999) 3 Supreme 391 wherein the Apex Court observed that such guess work that blood on other axe would have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which is judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.

I have noted while noting the fact of this case as to how many injuries the post-mortem doctors saw on the dead body of the victim. I do not like to repeat the numbers of injuries but must reiterate regarding the nature of those injuries. On scrutiny of the post-mortem report it appears that the injury Nos. 1 and 4 were incised wounds and injury No. 6 was one penetrating wound. Injury Nos. 1 and 6 both were 1 1/2" x 1 1/2" in length, the first one was on the forehead and bone deep and the second one was muscle deep but was penetrating wound. The injury No. 4 was incised wound 2" x 1/2" muscle deep over breast left side upper part.

For our readers I like to mention what is one incised wound. As per the Text Book of Forensic Medicine and Toxicology by J.B. Mukherjee (4th combined edition) edited by R.N. Karmakar at Page 314 such wounds are caused when a body tissue is struck or pressed by weapons or instruments having sharp linear or pointed edges. This is a wound which bleeds freely and fairly. Such injuries are caused by sharp cutting of weapon like knife, sword, dagger etc. In such type of injury as blood vessels are cut cleanly or even nicked there will be free and profuse haemorrhage with spouting of blood. In penetrating wound that is injury No. 6 blood will certainly come out and naturally the victim sustaining bleeding injury on this count also.

Thus I can say with certainty that the victim bled profusely and it is matching with factum of recovery of some wearing apparel which was kept in a bucket full of water which both PWs 4 & 5 saw and the IO (PW 6) also seized it as per seizure list marked Exhibit 3/2. The wearing apparel of the victim which the IO seized after the post-mortem examination as per seizure list (Exhibit-8) did not contain any mark of blood. This cannot be, if those articles were on her body when she was brutally assaulted. I reiterate that it goes without saying that the green petticoat and the red coloured blouse with which the dead body was forwarded to the dead house were not on the body of the victim when she was murdered. I can step forward to say that the green and white printed sari of the deceased which the I.O. found into the full bucket of water was on the body of the victim at that point of time. I am not unmindful of the fact that one seizure list was there in the record duly signed by two witnesses i.e. PWs 4 and 5 but unfortunately those were not marked as exhibit through the evidence of the IO. This being so I cannot look into the said seizure list. This is another example how the prosecution case was conducted before the Trial Court.

The other injuries which the doctor found were contusions which are same as bruises. It may be noted that from these types of injuries blood will not come out because such type of injuries affect the blood vessels. These injuries will affect the underlining tissues and such types of injuries are caused by a blunt force when overlying skin remains intact. I am satisfied that the other injuries that is injury Nos. 2, 3, 5 & 8 were caused by that mosquito net stand which is admittedly one hard and blunt object. As the injuries were "contusions" naturally the mosquito net stand did not get blood stained.

I have already said that the victim''s body was found in the quarters on that night and the accused must have been in that quarters. It may be mentioned that the accused appellant did not take any alibi before the Trial Court. Considering the evidence of PWs 4, 5 and 6 I am convinced that the body of the victim was found inside the quarter and if that be so the appellant would have come forward with one plausible explanation as to what happened to the victim on that night particularly when the accused appellant was none else but her husband. I reiterate that the accused was duty bound to explain how his wife received so many injuries which resulted in her death. The only plea which the accused took was that of false implication. I can refer here the decision of the Apex Court as reported in Ruli Ram and Another Vs. State of Haryana, AIR 2002 SC 3360 : (2002) CriLJ 4337 : (2002) 7 JT 267 : (2002) 6 SCALE 506 : (2002) 7 SCC 691 : (2002) 2 SCR 426 Supp wherein the Apex Court held when a plea of false implication is raised by the accused the foundation for the same has to be established.

Thus it is a fit case in which the Court will apply Section 106 of the Evidence Act when the entire chain is complete about which I have stated in details. For our readers section 106 of the Evidence Act runs thus: 106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

"Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

I am also not unmindful other decisions of the Apex Court on this point. The recent decisions are reported in 2015 (1) AICLR 628 (Suresh & Another v. State of Haryana) and State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 . The earliest decision to my knowledge was reported in Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 : (1956) CriLJ 794 : (1956) 1 SCR 199 . The other decisions are Trimukh Maroti Kirkan Vs. State of Maharashtra, (2007) CLT 471 Supp : (2007) CriLJ 20 : (2006) 2 DMC 757 : (2006) 9 JT 50 : (2006) 10 SCALE 190 : (2006) 10 SCC 681 : (2006) 8 SCR 156 Supp : (2006) 148 STC 638 , Ganeshlal Vs. State of Maharashtra, (1992) CriLJ 1545 : (1992) 2 Crimes 161 : (1993) 1 DMC 326 : (1992) 2 JT 592 : (1992) 1 SCALE 811 : (1992) 3 SCC 106 : (1992) 2 SCR 502 , Dnyaneshwar Vs. State of Maharashtra, (2007) 1 DMC 732 : (2007) 5 SCALE 350 : (2007) 10 SCC 445 : (2007) 4 SCR 248 to refer some of these. I cannot resist my lips to cite again the decision of the Apex Court in Mir Md. Omar (supra) which is a trend setter in these types of cases wherein the Apex Court observed the following, that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

It further proceeded to say presumption of fact is an inference as to the existence of one fact from the existence of some other facts. Unless the truth such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred certain other proved facts. When inferring the existence of a fact from other set of proved facts the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have the regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

I am also to note in this judgment whether this act of this accused may be converted into manslaughter. In a case of murder, killing of a human being is done with malice or forethought, where two ingredients Actus Rea and Mens Rea should work together to constitute this crime. It will have to be proved beyond doubt that the act of murder was pre-meditated or pre-planned act. The maxim governing the proposition is Actus non-facit Reum Nisi it means Act itself does not constitute guilt, unless it is done with guilty intent. The maxim connotes that the act itself does not make a man guilty, unless he has evil intention.

Thus, in other words in case of murder, there should not be killing alone, but there should be sufficient proof of intention to kill - vide Section 300 of the Code. Without sufficient proof malice or forethought, the murder will amount to manslaughter that is the culpable homicide not amounting to murder. The intention may be gathered when the injuries inflicted is situated over known vital parts of the body, it be inferred that, the assailant had an intention to kill the victim. Multiplicity of deadly injuries over body of the victim usually indicates homicidal intent of the murderer. Here as per the PM report seven injuries were inflicted about which I have stated in details. I must say that wounds both the incised wounds and also the penetrating wounds were inflicted on the vital parts of the body of the victim and all these injuries were inflicted not by any hard and blunt substance like "mosquito net stand" but by a sharp cutting weapon about which I have discussed in details in previous paragraphs. But, due to the favour shown by the I.O. the appellant was not taken into police remand and he was not taken to the places from where such sharp cutting weapon of offence could have been recovered. The entire case had to travel throughout in rough weather, firstly in the hand of the first I.O. and secondly when it come in the hand of the public prosecutor. In a criminal trial justice is the paramount consideration and it must be salvaged.

Thus in view of the discussion so long I am of the firm opinion that the accused appellant was rightly convicted by the trial court in respect of the charge punishable under Sections 302 and 201 of the Code. There is no merit in this appeal which is dismissed. I make no order as to costs. The findings and order of conviction is affirmed.

The seized articles be destroyed after the period of appeal is over. The lower court record along with a copy of this judgment be forwarded to the trial court for necessary action on its part.