Subir Dutta and Ashish Dutta vs State of West Bengal

Girish Chandra Gupta, J.—These two appeals arise out of a common judgment dated 25th May 1999 passed by the learned Additional Sessions Judge, Second Court, Murshidabad, in Sessions Trial No. 3(12) of 1998 in connection with Sessions Serial No. 144 of 1998, convicting the accused Subir Dutta, Ashish Dutta and Smt. Ira Dutta for offences punishable under Sections 302 and 201 both read with Section 34 of the Indian Penal Code. By an order dated 29th May 1999 all the convicts were sentenced to suffer life imprisonment as also to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment of two months for commission of offence punishable u/s 302 read with Section 31 of the Indian Penal Code. Each of the convicts was also sentenced to suffer rigorous imprisonment of three years as also to pay a fine of Rs. 500/- in default to suffer simple imprisonment for one month for commission of offence punishable u/s 201 read with Section 34 of the Indian Penal Code. The facts and circumstances of this case briefly stated are as follows :

On 7th February 1993 the deceased Bina was given in marriage according to Hindu customs and rites to the appellant Subir. On 15th May 1994 the parents of the deceased Bina visited her matrimonial house for participating in a social function. From the evidence of P.W.I, the father of the deceased it appears that on 15th May 1994 Bina was mentally upset. She had told that she was being disturbed by her-in-laws in various ways. She had wanted to go to her father''s house. She also had requested the P.W.I to take her to his place on the next Tuesday. This conversation took place between the father and the daugher on Sunday i.e. 15th May 1994. She also had told him that she would prepare food for him so that he might take his lunch at her matrimonial home. On 17th May 1994 that is to say on the next Tuesday he was informed by an Officer of the Beldanga P.S. that his daughter had died of burns. The events which took place on Tuesday the 17th May 1994, appearing from the evidence on record, chronologically arranged are as follows:

Between 5.30-6.00 a.m. : From the evidence of Smt. Krishna Modak, a School Teacher, it appears that there was trouble in the house of the accused Subir. From the evidence of Pankaj Kr. Ghosh, another school teacher, it appears that when he was preparing to attend the morning school his daughter drew his attention to smoke emerging from the house of the accused Subir. From the evidence of Pankaj Kr. Ghosh, another school teacher, it appears that when he was preparing to attend the morning school his daughter drew his attention to smoke emerging from the house of the accused persons. He rushed there and found the accused Ira Dutta walking a long the road in front of her house. When someone asked her as to the reason why smoke was coming out from her house she replied that perhaps a gas cylinder had burst. At that time the main gate of Subir Dutta''s house was closed from inside. Some young boys scaled the boundary wall and opened the main gate. The door of the grill verandah was also looked. Either Subir or Ashish dropped the key from the upper-floor. The grill-door was unlocked. There was fire in front of the door of a room inside. It was difficult to go near the closed door. Some local boys kicked the door. As a result the door opened. The door was closed from outside with a hatchbolt. He found a dead body being burnt inside. At that time Subir came down from the upper floor and told him that he had to go to the C.I. Office which was at a distance of about 300 yards from there. The dead body could not be recognised.

Amar Ghosh narrated the event as follows :

"I heard cry of my neighbours and also of the residents of the house of the accused persons. I found smoke to come out from the house of the accd. persons. I and other boys Sanjib, Pradip, Tapan and a woman Sarathi scaled the boundary wall because the maingate was closed from inside. The grill-door of the house was locked. Someone dropped the key thereof from upper-floor. We unlocked the grill-door. Perhaps, the door of the room from where the smoke was coming out was shut from inside and hence we kicked the door to break. We, after breaking open the door we found a dead body was being burnt."

Sarathi Haider corroborated the evidence of P.W.2 except for the fact that she did not depose that the door of the room from where smoke was coming out was perhaps closed from inside. She was declared hostile and was cross-examined by the prosecution. She denied that she had told the police that the accused Ira Dutta had been seen walking outside her house before the fire was detected.

Ashoke Haider in his examination-in-chief deposed that the door of the room which contained fire was opened by kicking and a dead body was found burning. In his cross-examination he deposed that the door was shut from inside.

Pradip Kr. Dey deposed that the wooden door of the room which contained fire was shut from inside. He was declared hostile and was cross-examined by the prosecution. He denied that he falsely had deposed that the door of the room was closed from inside.

6.10 a.m. : The accused Subir escaped from the place of occurrence. Shri Kumaresh Ghosh, a junior High School teacher, deposed as follows :

"At that time the Advocate Subirbabu (Identified the accd. Subir Dutta) signaled us by raising hand at a distance of about 100 cubits from the C.I. Office. It was 6.10 hours. We stopped. The advocate Subir Dutta asked t us for a lift to Berhampore and we told him that we were going to attend our school. Then Subir told that his wife was hospitalised and as such he had to go to his relative''s house. On his request we agreed to give him. lift up to Kunjaghata. We then three went to our school for dropping our Head Master. After dropping the Head Master we took Subir Dutta to Kunjaghata."

P.W. 14 Shri Sankar Puttundu coroborated the evidence of P.W.13.

6.40 a.m. : It appears from the evidence of the I.O., the P.W.22 that one Smt. Tripti Sinha informed him about the fire in the house of Subir Dutta. He recorded a G.D. entry which has been marked exhibit ''4'' and proceeded to the spot.

6.50 a.m.: P.W.22 reached the place of occurrence. He found that an agitated crowd had collected in front of the house of the accused persons. In order to ensure safety of the accused persons he took Ira Dutta and Ashish Dutta in custody.

8.15 a.m. : P.W.I the father of the deceased Bina arrived at the place of occurrence. He did not find any of the in-laws of the deceased at home.

9.45 a.m.: FIR was lodged by the P.W.I alleging that the accused persons killed his daughter Bina and thereafter the dead body was set on fire by them. In his statement u/s 154 which is exhibit ''4'' he also has alleged that his daughter Bina used to be tortured by the in-laws. She was made to do the entire menial job. They also claimed money. The conversation which took place between the father and the daughter on 15th May, 1994 noticed above has also been reflected.

10 a.m. : P.W. 22 conducted inquest. The inquest report is exhibit ''5''. It appears from the inquest report that the dead body was found in a storeroom in the ground floor with western opening. The body was completely burnt. There were bleeding injuries on the body. It is stated in the report that the room in question was locked from outside. P.W.22 appears to have interrogated Ashoke Haider the P.W.4 who -disclosed to him that noticing the fire he accompanied by 5/6 persons came running broke open the door and found the dead body.

12.15 Noon: Postmortem was held. The cause of death indicated in the postmortem report is as follows:

"the cause of death is due to cardio-respiratory failure due to asphyxia with burn post-mortem in nature. The death is homicidal in nature."

The following injuries have been noted in the postmortem report:

"Neck muscles are seen laeerated. The cartilage of larynx and rings of upper portion of trachen are seen fractured."

4.35 p.m. : According to the evidence of the P.W.22 the accused Subir was brought under arrest.

The accused persons were charged u/s 302 read with Section 34 and under Sections 201 and 498A. They were acquitted of the charge u/s 498A and convicted u/s 302 / 201 read with Section 34 of the Indian Penal Code.

Mr. Sekhar Basu, learned advocate appearing in support of the CRA No. 174 of 1999 made twofold submissions. His first submission is as follows :

(a) I. The room in which the body was found burning was closed from inside. In support of this submission he relied on the evidence of the P.W.2 who in his cross-examination firmly deposed that the door was shut from inside. Amar Ghosh is a neighbour. Sarathi Haider deposed that the boys kicked the door of the room from where smoke was coming out. Ashoke Haider deposed in his cross-examination that the room in question was shut from inside. He was declared hostile and was cross-examined. Mr. Basu submitted that the evidence of the P.W.8 who deposed that the door of the room in question was closed from outside with a hatchbolt cannot be. believed because according to the evidence of the Pankaj Babu, the P.W.8 had entered into the main gate after the door of the room in question was opened.

II. He further submitted that the evidence of the P.W.8 cannot also be relied upon because he has admitted in his cross-examination that the father of the deceased P.W. 1 went to his house 2/3 days before he came to give evidence. He also has admitted in his evidence that police had interrogated him many a times.

III. The P.W.8 is a tutored witness and is also a friendly witness and therefore his evidence cannot be relied upon. He further submitted that Amar Ghosh and Ashok Haider were not declared hostile and as such their evidence can be relied upon by the defence. In support of his submission he relied upon a judgment in the case of Muktiar Ahmed vs. State reported in 2005 SCC (Criminal) 1037. In that judgment, relying upon an earlier judgment in the case of Rajaram vs. State of Rajasthan, it was held that "it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution." The doctor in that case had not supported the case of the prosecution and was also not declared hostile.

(b) He further submitted that re-examination of the P.W.22 the I.O. and allowing his following evidence to come on the record was clearly illegal and contrary to Section 138 of the Evidence Act.

"The witness Amar Ghosh told me that he found the door of the room from which the smoke was coming out was closed and a lock was hanging from outside. Sarathi Haider told me that she had seen the mother of" the accd. Subir Dutta to move on the road by the side of her house in the morning at about 5.30 - 6 a.m. of the date of incident. This witness further told that she found burning kerosene oil was passing under the door of the room from which the smoke was coming out and the said door was closed from outside. Ashoke Haider told me that the door of the room from which smoke was coming out and the said door was closed from outside. Ashoke Haider told me that the door of the room from which smoke was coming out was locked from outside."

(c) Lastly he submitted that the P.W.22 did not seize any door or any lock which goes to show that the story that the door was locked from outside is untrue.

Mr. Joymalya Bagchi, learned advocate appearing in support of CRA No. 165 of 1999 adopted the same submissions of Mr. Basu.

Mr. Goswami, Learned advocate appearing for the State submitted that it would appear from the inquest report that the name of Ashoke Haider has been specifically mentioned therein. It is on the basis of the statement made by A. Haider and 5/6 other persons who had opened the door of the room in question that it was recorded in the inquest report, contemporaneously prepared before there was any scope for any concoction or fabrication, that the room was closed from outside.

We have given our anxious thought to the submissions advanced by the learned advocates in this regard. We are of the view that it is one thing to say that the defence is entitled to rely upon the evidence of a prosecution witness who was not declared hostile while it is wholly another to say that such evidence has a ring of truth.

The inquest report prepared contemporaneously, as rightly submitted by Mr. Goswami, goes to show that the room in question was closed from outside. According to the P.W.8 the door was closed from outside by a hatch bolt. P.W.9 a hostile witness, in his cross-examination by the defence, deposed that the P.W.8 had entered the main gate after the door of the room in question was opened. No such suggestion was given to the P.W.8 while he was in the box. The evidence of the P.W.9 hardly inspires any confidence. P.W.2 in his examination-in-chief used the word ''perhaps''. He was not sure whether the room was closed from inside but in cross-examination he emphatically deposed that the room was closed from inside. Ashok Haider in his examination-in-chief did not depose that the room in question was closed from inside. There was therefore no scope for the prosecution to declare either of them hostile. The P.W.3 did not depose that the room was closed from inside. She has deposed that the boys kicked the door and the room opened. Kicking the door is natural in the facts of the case. P.W.8 deposed that the fire was so severe that it was difficult to go near the door. Therefore kicking was the only method by which the door could have been opened. The case of the accused persons is that all of them were on the first floor. They came down according to them after the local people had opened the door leading to the first floor. If that were so, they cannot be expected to have any knowledge whether the storeroom in the ground floor which contained fire was closed from outside or inside. For the reasons indicated above we are of the view that the judgments relied upon by Mr. Basu have no manner of application to the facts and circumstances of this case. The following further circumstances lend assurance to the court to hold that the door of the room in question was closed from outside.

I. P.W.8 was not at all cross-examined on the point nor was any suggestion given to him that the door of the room in question was not closed from outside with a hatch bolt.

II. The accused Ashish Kr. Dutta in his examination u/s 313 Cr.P.C. did not dispute the fact that the door of the room in question was closed from outside. The relevant question and answer reads as follows :

"Q. No. 7 : It is evident from prosecution evidence that the door of the above noted room was closed with hatch bolt from outside.

A. Nothing to say."

III. P.W.22 deposed that the prosecution witnesses No. 2, 3, 4 and 9 had told him that the door of the room in question was closed from outside. The Prosecution Witnesses No. 2, 4 and 9 went back on their earlier statement presumably because they wanted to help out. the neighbour.

IV. The accused Ira Dutta, when the fire was detected, was seen loitering in the road in front of her house by P.W.8. Upon being asked as to the source of fire she told that a gas cylinder had burst. The relevant evidence of the P.W.8 in this regard is as follows:

"I rushed there and found the accd. Ira Dutta to walk through the road in front of her house. Someone asked the accd. Ira Dutta as to why smoke was coming out from her house. The accd. Ira Dutta replied that perhaps gas cylinder was burst out."

V. P.W.22 deposed that both P.W.3 and P.W.8 had told him that the accused Ira Dutta was loitering in front of her house at the time when the fire was detected. He also deposed that the reason of the fire reported by Ira Dutta was also told to him by the aforesaid witnesses. This reported version is admissible because the informants have been examined. [See Balram Prasad Agrawal Vs. State of Bihar and others, ].

VI. The evidence of P.W.22 is that the crowd in front of the house of the accused was agitated. In order to secure the safely of the accused they were taken in custody. Presence of Smt. Ira Dutta on the road before the fire was detected and the door of the room which contained fire being closed from outside were the factors which could have enraged the local people. There is no other explanation why the local should have been agitated to see the misfortune of a neighbour.

b) The submission that the re-examination of the P.W.22 was illegally allowed by the court is, in our view, wholly without any substance. The cross-examination and re-examination of the P.W.22 took place on 29th January 1999. The order No. 10 dated 29th January 1999 goes to show that the learned P. P. had filed a petition for re-examination the I.O. The defence did not oppose the prayer. It is on this basis that the P.W.22 was allowed to be re-examined. What is important is that further cross-examination, after the P.W.22 was re-examined, was declined.

(c) The fact that the P.W.22 did not seize any door or lock does not, in our view, militate against the case of the prosecution. It is nobody''s case that there was any lock on the door of the room in question from outside.

We are in the circumstances unable to, accept the submission of Mr. Basu that the door of the room in question where the dead body was burning was closed from inside. We may however hasten to add that this is not the only circumstance on the basis of which the appeal is going to be decided. We have merely dealt with the first submission of Mr. Basu and expressed our views with regard thereto.

The second and last submission made by Mr. Basu is that the doctor the P.W.5 who conducted the postmortem examination in his cross-examination admitted that the cause of death opined by him was controversial. He therefore submitted that the very basis that the death is homicidal in nature is disproved by the evidence of the P.W.5 himself He submitted that the guilt has not been proved beyond reasonable doubt and therefore the appellant should be acquitted. He in this regard relied on a judgment in the case of Baburam Vs. State of Madhya Pradesh, .

We however are unable to accept this submission. The judgment in the case of Baburam has no manner of application because in the present case there is evidence that the room in question was closed from outside which we already have indicated. There are other circumstances which we shall presently discuss which are as follows:

(a) P.W.5, the doctor who conducted the postmortem examination, in his evidence deposed about the following injuries found on the person of the deceased.

(i) Muscles around windpipe (trachea) were seen lacerated.

(ii) The cartilage of larynx and trachea (upper portion) are seen fractured.

(iii) Tongue swollen.

(iv) Mouth cavity containing blood and froth.

(v) Neck muscles were seen lacerated.

(vi) The cartilage of larynx-and rings of upper portion of trachea were seen fractured.

(vii) Neck muscles around larynx and trachea were seen lacerated.

(viii) Carotid artery was ruptured.

(ix) Lastly there is no sooty particles in trachea and lungs.

Not one question was asked in the cross-examination to the doctor as regards any of the aforesaid injuries. The deceased at the relevant point of time was at her matrimonial house. She was therefore in the custody of the accused persons. The accused persons owed an explanation as to how did the victim suffer the aforesaid injuries which they failed to discharge. Reference in this regard may be made to the judgment in the case of Ganeshlal Vs. State of Maharashtra, In the aforesaid judgment the following views were expressed by Their Lordships.

"When the death had occurred in their custody the appellant is under an obligation in Section 313 Cr.P.C. 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 this wife. The circumstantial evidence thus discussed is complete and consistent with the only conclusion that the inmates alone committed the crime and the appellant was one among them."

Dead silence on the part of the accused as to the cause of the incident is a grave circumstance. Reference in this regard may be made to the case of Ponnuswami vs. State reported in 1995 Cri LJ 2658 wherein Their Lordship held as follows:

"All the same, the appellant had no explanation to offer as to wherefrom had he obtained those forged currency notes. Silence on the part of the appellant in such circumstances would by itself be a telling circumstance which would weigh against him in the consideration of the prosecution evidence led against him."

The facts and circumstances in which the victim suffered the aforesaid injuries on her person are in the special knowledge of the accused persons. It was not suggested in the cross-examination of the prosecution witnesses nor in the examination u/s 313 Cr.P.C, nor even before us that any fifth person had committed the crime. There were four persons in the house including the victim. The dead body of the victim was burning in the ground floor. The accused Subir and Ashish were in the first floor and their mother Ira was loitering outside the house. She also appears to have adopted a false excuse as to the source of fire. She told the neighbours that a gas cylinder may have burst. The defence has not led any evidence to show that there had been any incident of bursting of any gas cylinder nor is there any such suggestion. It is for. the accused persons to explain as to how did the victim come to sustain the aforesaid injuries. Reference in this regard can be made to the judgment in the case of Balram Prasad Agrawal Vs. State of Bihar and others, . It was also a case of death of a housewife by drowning in a well wherein Their Lordships quoted from another judgment in the case of Collector of Customs vs. D. Bhoormal wherein the following view was expressed.

"31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatoh vs. Archer Cowp at p. 65 ''according to the proof which it was in the power of one side to prove and in the power of the other to have contradicted''. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and Stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned with it on the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned and, if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in Law of Evidence (12th Edn. Article 320, page 291), the ''presumption of innocence is, no doubt presumption juris: but eyeryday''s practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property'', though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice."

The fact that the defence has not come up with any explanation is a strong circumstance militating against them. The records further reveal that on 10th February, 1999 the accused were examined u/s 313 Criminal Procedure Code. Then and there an application on behalf of the accused Ashish was moved praying for acquittal u/s 232 Criminal Procedure Code which was rejected. On behalf of the accused Subir and Ira prayer for adjournment was made in order to adduce evidence. On the same day some letters exchanged between the deceased and her husband and between the P.W.I and the accused Subir were tendered on admission. Subsequently only a log book was tendered which has not even been touched before us. On 22nd February 1999 the learned Trial Court recorded in its order that the defence did not want to adduce any further evidence.

(b) The accused Subir at 6.10 a.m. was found at a place which is about 100 cubits from the office of C.I. by the P.W.13 Kumaresh Ghosh. P.W.8 has deposed that Subir immediately after coming down from the upper floor told him that he had to go to the office of C.I. which was at a distance of 300 yards from the place of occurrence. There is, therefore, dependable evidence that Subir escaped from the place of occurrence then and there. P.W. 13 further deposed that Subir sought for a lift on the ground. that his wife was hospitalised and he had to go to the house of a relative. Not one question was asked in the cross-examination to the P.W. 13 in this regard. Subir knew that his wife was lying dead in the ground floor storeroom of his house. He gave a wrong excuse for the purpose of obtaining a lift. He also gave a wrong excuse to P.W.8 that he was going to the office of C.I. which he never intended. The untrue statements made by Subir clearly establish that his object was to escape from the place of occurrence.

(c) If Subir had already not known that the victim was dead he would have attempted to rescue his wife. The fact that no such attempt was made and all his energy was devoted to escaping from the place of occurrence is yet another circumstance which militates against the accused persons.

(d) Each and every witness, hostile or not, deposed that when the door of the room was opened a dead body was found burning.

In the facts of the case we are inclined to hold that after extinguishing the life of the deceased she was set on fire and Ira Dutta shut the door lending to the first floor from the outside so as to give a colour of innocence to the inmates of the house. Obviously the door of the room in question was shut after the dead body of the deceased was set on fire so as to prevent smoke from coming out instantaneously. By the time the neighbours collected and the room was opened the body of the victim had been burnt to a great extent which according to the doctor was 90%. "Only 6" x 4" of dorsolumber region of back escaped from burns".

For the reasons indicated above we are unable to differ with the views expressed by the learned trial court. Both the conviction and the sentence are upheld. These appeals in the result fail and are dismissed.

The appellants are on bail. Bail granted to them is cancelled. They are directed to forthwith surrender before the learned Trial Court to serve out the rest of their sentences.

Lower Court Records with a copy of this judgment be transmitted forthwith to the learned trial Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be issued to the learned counsel for the parties on compliance of all formalities.

Kishore Kumar Prasad, J.

I agree.