Though argument was raised that prosecution case could not be
believed on the ground that even after knowing the commission of cruelty
upon the victim, and cause of cruelty, the parents of victim never
reported the same to police station or to panchyaat body, and the
neighbouring people living around in-law’s house of deceased victim, but
this cannot be invariable rule that parent would immediately lodge a
complaint immediately after knowing commission of cruelty upon their daughter, ignoring possibilty of reconciliation mutually. It is ordinary conduct that parents would prefer to persuade their daughter ignoring the torture, and the cruelty for the future benefit of their daughter.
Causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitly attract Section 498A/34 I.P.C. against the in-law’s members, including accused husband.
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:-
The Hon’ble Justice Sahidullah Munshi.
And
The Hon’ble Justice Subhasis Dasgupta.
CRA No. 247 of 2006
Mazidul Miah @ Mia & Ors. Vs. State of West Bengal
Judgment on : 25.06.2020
Subhasis Dasgupta, J:-
This appeal found its emergence after it was preferred by accused
persons/appellants against the judgment and order of conviction, and
sentence, passed by learned Additional Sessions Judge, Cooch Behar, in
Sessions Case No. 74/2 giving rise to Sessions Trial No. 4(12)04,
convicting the accused persons/appellants under Section 498A/302/34
I.P.C., and sentencing them thereunder to suffer rigorous imprisonment
for three (3) years with fine of Rs. 5,000/-(Rupees Five Thousand) each,
with default stipulation to undergo rigorous imprisonment for six (6)
months each under Section 498A I.P.C., and to suffer imprisonment for
life with fine of Rs.5,000/- (Rupees Five Thousand) each, and in default
to pay fine further rigorous imprisonment for six (6) months each under
Section 302/34 I.P.C.
We feel inclined to mention the factual scenario of this case
precisely as established and highlighted by the prosecution, discernable
from the witnesses examined during trial, that the deceased being the
second daughter of the de-facto complainant/father was put to suffer
death in her in-law’s house by hanging about seven (7) months after her
marriage.
Admittedly, victim was given marriage with accused/appellant no.
1 Mazidul Miah on 16.10.1997, according to mohammedan rites and
customs satisfying the demand of accused persons, like by paying cash
of Rs.11,000/- (Rupees Eleven Thousand), silver ornaments of three
descriptions along with one Hero cycle and other valuables.
After visit to her in-law’s house, deceased victim was put to suffer
cruelty, oppression and ill-treatment by her in-law’s members, including
her accused husband for her black complexion. She was not loved by
family members of in-law’s house, and frequently abused her with a
threat that accused husband would be given marriage shortly after
repealing her marriage and driving her out of the matrimonial home.
The in-law’s members while causing ill-treatment upon victim
made her understand just three days after her marriage for staying in a
cow shed, expressing their dissatisfaction on the ground of her black
complexion. Accused husband beat her physically with cycle chain while
causing physical torture upon the deceased victim. She was attempted to
be killed. Deceased victim reported everything to her parents about the
torture and cruelty, she received in her in-law’s house, when she visited
her paternal house on several occasions.
The de-facto complainant/father sent his daughter/victim to her
in-law’s house on 11.06.1998, after persuading her to withstand such
torture inflicted upon her, for her future benefit upon realization of weak
financial condition of her father. The mother of deceased victim, when
visited her in-law’s house on 20th June, 1998, the victim daughter
informed her narrating the plight of her physical assault committed upon
her by her in-law’s members. The father/complainant learnt everything
after his wife had returned to house. The eldest son-in-law of the de-facto
complainant/father on 24th June, 1998, visited to the house of de-facto
complainant and informed de-facto complainant that victim daughter
had been put to suffer death by hanging with use of rope. Having
received such information, de-facto complainant/father rushed to the in4
law’s house of his deceased daughter, when victim daughter’s body had
already been sent to P.S. for holding post-mortem examination.
The police inquest was held. Two pieces of light green coloured
tape recorder chord, one of which measuring about 2.5 ft. long, and
another being 8 ft. long, were seized during investigation, alleging the
same to have been used in the instant murder, as weapon of assault. The
dead body of deceased was subjected to autopsy after due consultation of
inquest report and F.S.L. report of viscera of deceased. The Autopsy
Surgeon opined that the death of the deceased was due to asphyxia as
effect of strangulation by ligature, which was ante-mortem and homicidal
in nature.
Police undertook investigation receiving a complaint on 26.06.1998
from the father of deceased, and on completion of investigation
submitted charge against the accused persons. The Trial was conducted
framing charge against the accused persons/appellants under Section
498A/302/34 I.P.C., and collecting evidence of as many as eleven (11)
witnesses.
PW-1 is the de-facto complainant being the father of deceased,
while PW-2 is the eldest son-in-law of the de-facto complainant. PW-
and PW-4 are the neighbours of PW-1, and they are also relatives of PW-
1. PW-5 and PW-6 are neighbours of accused/appellants, out of which
PW-5 was declared Hostile to prosecution. PW-7 is Autopsy Surgeon
furnishing his post-mortem report Exhibit-1, and his final opinion to the
cause of death is Exhibit-3, given after perusal of F.S.L. report of the
viscera of deceased (Exhibit-2). PW-8 is the first Investigating Officer,
while PW-11 is the last Investigating Officer submitting charge sheet in
this case. PW-9 is a seizure witness in respect of whom two (2) pieces of
tape recorder chord (Exhibit-7), one piece of which was found lying by
the side of the dead body of deceased, and another was found tied with
the bamboo of thatched roof ceiling house in the in-law’s of accused
persons. PW-10 is the Recording Officer in respect of complaint received
from the de-facto complainant (Exhibit-5).
The Trial Court appears to have based his conviction relying upon
the testimony of prosecution witnesses, other than PW-5 (declared
hostile), taking support of Autopsy Surgeon’s report, and the
Investigating Officer as well.
Defence set up during trial is denial of offence, false implication
together with a plea, though not successfully established, that since
victim had love affairs with someone, and against her wish she was given
marriage with accused husband, the victim herself committed suicide by
hanging for her past love having been frustrated.
The order of conviction and sentence was challenged in this appeal
making submission, which may be mentioned as hereunder:
1. That the learned Trial Judge had improperly exercised his
authority in holding the accused persons/appellants guilty
laying much emphasis upon the Autopsy Surgeon’s report in a
case where there was no supportive, clinching materials in
evidence to make out a clear case of strangulation, as opposed
to suicidal death, and further in the absence of weapon of
assault being two (2) pieces of tape recorder’s chord, being
produced before the Trial Court, there cannot be any
conviction in a murder trial;
2. That the learned Trial Judge most illegally disregarded the
version of PW-5, a neiboughering people of accused persons
having had his opportunity to be present in the house of
accused persons after being attracted by the cries of accused
mother-in-law of deceased victim, and PW-5 having himself
found the deceased victim to be in hanging condition, he
proceeded to cut the knot and caused dead body to be brought
down to the earth, and thus making no reliance upon the
testimony of PW-5, the probability of occasioning suicidal
death was stifled to death;
3. That the learned Trial Judge committed a breach in
believing the testimony of PW-1, 2, 3, and 4, who were
partisan by themselves, to make out a case of cruelty, in a
case where admittedly the marriage of victim was a negotiated
one, expressing mutual satisfaction by each of the parties to
the marriage, and thus the allegation of having caused cruelty
to victim for her black complexion would not be a believable
version;
4. That the evidence adduced having contained serious
discrepancies/contradictions, there developed substantial
doubt over the death of the deceased, and the benefit of such
doubt should be necessarily favoured to accused/appellant;
5. That the post conduct of the mother-in-law revealed in the
testimony of witnesses would not necessarily leave materials
for homicidal death, contrary to suicidal death of deceased;
6. That the dead body of victim having recovered from a cow
shed, though situated within the compound of the house of
accused persons, the parents-in-law could not be necessarily
implicated in this case framing charges against them;
7. That there was delay of two (2) days in lodging the F.I.R. at
the police station, which left sufficient room for concoction and
embellishment in the version of prosecution case.
Respondent/State contested the appeal supporting the order of
conviction. According to Respondent, the cross-examination of Autopsy
Surgeon revealing a case of homicidal death of deceased victim remaining
unshaken to doubt, learned Trial Judge had rightly believed the report of
Autopsy Surgeon, describing the prosecution case to be coming within
the meaning of homicidal death, but not a suicidal death.
The plea of suicidal death not being established in trial even during
cross-examination, the same should not be allowed to be reopened. The
allegation of causing homicidal death thus, according to
State/Respondent was rightly attracted against the accused/appellants
taking resort to Section 106/113(A) of Evidence Act. The order of
conviction and sentence, according to State, would remain undisturbed.
At the very threshold of this case, this may be mentioned that the
instant case is not based on dowry demand. The death of deceased, as
set up by prosecution during trial was the dissatisfaction of accused
persons expressed with regard to black complexion of deceased victim in
a case where marriage was admittedly negotiable one.
Investigation was initially started recording a case against
accused/appellants under Section 498A/306 I.P.C., but upon receipt of
final report of Autopsy Surgeon, a new horizon was developed attracting
the provision of Section 302 read with Section 498A against accused
persons. The Autopsy Surgeon kept his final opinion pending even
noticing presence of a continuous ligature mark on the neck of deceased,
without perusing the F.S.L. report of viscera of deceased, where nothing
could be detected as regards poison in the viscera of the deceased. The
definite opinion of Autopsy Surgeon was that the death of deceased was
asphyxia, being consequent upon strangulation evidenced by ligature,
which was ante-mortem and homicidal in nature. Prosecution thus, is
found to rest upon strangulation, a homicidal death respecting Autopsy
Surgeon’s report.
Five (5) accused persons were put up for trial, including the
present appellants. Out of three (3) appellants herein appellant no. 1 is
the husband, appellant no. 2 is the father-in-law, while appellant no. 3 is
the mother-in-law of deceased. Out of five (5) persons put up for trial,
two (2) accused persons were favoured with acquittal for want of evidence
by the Trial Court. During the pendency of this appeal, we had the
occasion to receive a report from correctional authority informing that
appellant no. 2/Hasaruddin Miah @ Mia @ Hachheruddin Mia had
expired on 24.02.2013 in hospital.
The prosecution case simpliciter is that deceased victim was put to
suffer death by hanging in her matrimonial home, the reason being the
dissatisfaction of the accused persons for the black complexion of
deceased victim. The entire effort of accused/appellant was to render the
prosecution case improbable and unbelievable on the principal ground of
non-production of offending weapon in the instant murder a case where
the prosecution firmly relied upon the Autopsy Surgeon’s report,
revealing a case of homicidal death by reason of strangulation suffered
by deceased.
We would now address the points raised in this appeal by the
discussion made hereunder, bearing in mind that the deceased victim, a twenty (20) year old woman, suffered her unnatural death in her
matrimonial home about seven (7) months after her marriage. Such
discussion would help us coming to a rational decision after ascertaining
whether it was a homicidal death or a suicidal one.
Admittedly, the marriage of deceased victim was a negotiable one.
After marriage victim had been to her in-law’s house. She lived together
with her husband to maintain her conjugal life staying in a separate
room of her in-law’s house. Though, the de-facto complainant being the
father/PW-1 of deceased victim stated in his evidence that he satisfied
the demands of accused persons by paying a cash of Rs. 11,000/-
(Rupees Eleven Thousand), one bicycle, ornaments of three descriptions
at the time of marriage of his deceased daughter, but the entire edifice of
prosecution case of homicidal death being not founded upon the story of
dissatisfaction of post marital demand leading to the death of deceased
for the cruelty she received in her in-law’s house, it would be an
irrelevant exercise for our present purpose to deeply go into such issue.
A look to the evidence is necessary to ascertain perpetration of
cruelty upon victim in her marital home by appellants for their
dissatisfaction over the black complexion of victim.
The evidence adduced by PW-1 is specific to reveal that four days
after marriage, victim visited her paternal house, when she expressed her
dissatisfaction expressing the cruelty she received by her in-law’s
members over her black complexion. The deceased thus, made her
father/PW-1 posted with a fact that the torture assumed such
dimension, when in-law’s members directed her to live in a cow shed.
The cause of inflicting torture was the black complexion of
deceased victim, which lead the in-law's members of victim including her
accused husband to cause physical cruelty upon her. It was also given to
understand that victim received threat from in-law’s members for her
husband's second marriage after driving her out from matrimonial home.
So long victim remained alive and visited her paternal house, she
expressed her extent of torture and cruelty inflicted upon her by her inlaw's
members, and all the times the de-facto complainant persuaded his
daugther to return to her in-law's house for her future prospect, keeping
in view the poor condition of de-facto complainant/father. The mother of
victim, since deceased, when visited the in-law's house about four days
prior to the incident of death, the in-law's members wounded the
deceased victim even in presence of her mother, and the victim
individually informed everything to her mother aobut the extent of
cruelty she recieved, and reason of such torture. The mother of the
victim after returning to her house stated such things to de-facto
complainant/ father. Ultimately, the deceased victim was put to suffer
death by hanging on 24.06.1998, in her in-law's house.
Such unnatural death information, according to PW-1, was not
given to PW-1/father, and when de-facto complainant/father reached to
the in-law's house of victim pursuant to the information supplied by his
eldest son-in-law, the dead body of deceased victim had already been
sent to police station for post-mortem. The contention of PW-1, as stated
in his evidence, was that the accused persons deliberately got the dead
body of victim buried without furnishing information of his daughter’s
death. PW-1/father thus, claimed in his testimony that his deceased
victim daughter had been put to suffer her death by accused persons
after causing her to suffer cruelty, expressing their utter dissatisfaction
over her black complexion even after the marriage was a negotiated one.
PW-2 being the eldest son-in-law of PW-1 corroborated the
testimony of PW-1, as regards the cruelty perpetrated upon the victim,
and the cause of cruelty inflicted upon the victim. PW-2 supporting the
prosecution story gave out that he had the occasion to know about
torture and cruelty inflicted upon victim whenever she visited his house.
PW-2 after receiving death information of deceased victim had been to
the in-law’s house of deceased victim, which was about 1-1.5 Km. away
(approx.) from his house, and on reaching there he found the dead body
lying over there. PW-2 having learnt from accused persons that
information of death had not been sent to the father of deceased, he
returned to his house and sent information to his father-in-law/PW-1 by
sending his younger brother. Both PW-1/father and son-in-law/PW-2
together visited the in-law’s house of victim, when the dead body of
victim had already been sent to police station for post-mortem
examination.
PW-3 and PW-4 are the relatives and neighbouring people of PW-1.
Both PW-3 and PW-4 supported prosecution case offering corroboration
to the testimony of PW-1 that the accused persons put the victim to
cruelty in several ways, expressing their dissatisfaction for her black
complexion. They knew about the torture either from deceased victim,
whenever she visited her father’s house, or from victim’s father. They
consistently stated that whenever victim visited her paternal house, all
the times the father/PW-1 persuaded her to go back to her in-law’s
house, keeping in view the poor condition of her father obviously for
future benefit. These two witnesses (PW-3 and pw-4) had know occasion
to to see commission of cruelty in their own eyes by visiting to the inlaw’s
house of deceased victim.
Though argument was raised that prosecution case could not be
believed on the ground that even after knowing the commission of cruelty
upon the victim, and cause of cruelty, the parents of victim never
reported the same to police station or to panchyaat body, and the
neighbouring people living around in-law’s house of deceased victim, but
this cannot be invariable rule that parent would immediately lodge a
complaint immediately after knowing commission of cruelty upon their daughter, ignoring possibilty of reconciliation mutually. It is ordinary conduct that parents would prefer to persuade their daughter ignoring the torture, and the cruelty for the future benefit of their daughter.
This is a case where PW-1/father of victim owns 15-16 kathas of
agricultural land for his livelihood. Naturally, the father was left with
best option to persuade his daughter for rejoining her in-law’s house,
foregoing the torture, ill-treatment, cruelty for future prospect, and this
was rightly done by father/PW-1 by persuading his daughter, so that she
could be made to return to her in-law’s house for leading a peaceful conjugal life
with husband.
The cause of cruelty was challenged by the learned advocate for
the appellant contending that since it was a negotiated marriage, there was no scope for the in-law’s members to express their dissatisfaction for the black complexion of victim.
Though marriage was held after negotiation between the parties,
but when there is consistent evidence of PW-1 to PW-4 that victim was
put to suffer cruelty by in-law’s members, for their dissatisfaction
expressed over the black complexion of deceased, and further for giving a
threat to deceased victim proposing a second marriage of her accused
husband after driving her out from in-law’s house, the prosecution case
should not to be looked with doubt simply upon noticing denial of the accused persons in their cross-examination.
Causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitly attract Section 498A/34 I.P.C. against the in-law’s members, including accused husband.
The next question begging answer from us is whether the victim
suffered homicidal or suicidal death is a question of fact being dependent
upon circumstances, to be decided from evidence established in this
case.
Learned advocate for the appellant referring cross-examination of
PW-2 submitted that since the marriage of victim was given against her wish, ignoring her love affair with someone, the deceased victim
voluntarily committed suicide in her in-law’s house, and therefore,
allegation of homicidal death by accused in-law’s members for her black complexion after causing cruelty to her was far from belief.
True it is that there was a suggestion to that effect in cross examination
to PW-2, but the witness denied the same. There was no
other convincing evidence transpired in the cross-examination of
witnesses to reveal the previous love affairs of deceased victim with
someone else, and the mental disposition of victim, supportive of
commissioning suicide, as contended.
During examination under Section 313 Cr.P.C., accused persons
failed to offer any satisfactory explanation in support of their stand based
on suicidal death, compared to homicidal death. Accordingly, such
suggestion of love affair of deceased victim, and commission of suicide for
giving marriage against her wish, thus, would be without any relevance.
The place of occurrence, according to rough sketch prepared is at
the north of in-law’s house of victim. According to PW-1/father, there
are five rooms in the in-law’s house of his deceased daughter, and his
daughter at the relevant point of time used to occupy south facing room
with his son-in-law.
Autopsy Surgeon while holding post-mortem examination,
consulted the police inquest, wherein the place of occurrence was
described to be situated at the north sided room of in-law’s house of
deceased victim, and thus, matching with rough sketch map prepared by
Investigating Officer, and the evidence of PW-1. Though police inquest
was not proved in evidence, but the same may be incidentally looked
upon applying judicial notice over the same for identification of P.O.
perspicuously in the instant case for a challenge over the P.O. disputing
it to be a cow shed. We are accordingly not impressed with the
submission of appellant challenging the P.O. so as to exculpate the inlaw’s
members from charges framed.
PW-5, a neighbour of accused person before being declared hostile
to the prosecution stated in his evidence that while he was going for bath
in the nearby river, he rushed to the house of the accused persons being
attracted by the shout raised by the mother-in-law, and on reaching
there her found the body of victim in hanging condition. Seeing such
hanging body of the victim, PW-5 claimed to have cut down the knot of
the dead body, and caused the body to be brought down. According to
PW-5, the mother-in-law was then found weeping. PW-11, being the last
Investigating Officer contradicted with such evidence of PW-5 by stating
to the effect that during investigation PW-5 never made any statement,
stating that he found the body in hanging condition and also found the
same on floor, thereby rendering the testimony of PW-5 to be suspicious
one. When there is clear contradiction as regards that part of the
statement of a hostile witness (PW-5) before being declared hostile with
that of the statement of Investigating Offcer, the inference would be that
it is nothing but an embellishment, exaggeration or improvement of a
version of a witness, developed during trial, and relying upon which no
conclusion can be reached.
PW-6 is an another neighbour of accused persons, who visited the
hosue of accused persons on the relevant date being attracted by the
alarm raised by mother-in-law of deceased victim. This witness found the
mother-in-law of victim crying, taking out the dead body of the victim.
PW-6 could not tell as to how the dead body was brought down, and who
brought down the same on earth, but he could only find marks of half
strangulation on the neck of deceased. He, however, supported stating
that the victim had suffered death about seven moths after her marriage.
18
The mark of strangulation, as noticed by PW-6 was unveiled by Autopsy
Surgeon/PW-7, who found one straight horizontal line linear in the
middle of neck, three (3) inch in length, resembling ligature mark of
telephone chord.
Initially, the post-mortem doctor could not give a definite any
opinion of death by his report (vide Exhibit-1), but he subsequently after
perusal of F.S.L. report (Exhibit-2) passed his opinion stating that the
death was due to axphyxia, as effect of strangulation by ligature mark,
which was ante-mortem and homicidal in nature. Autopsy Surgeon also
stated categorically in his evidence that if any person is pressed by
telephone chord on his throat, then there could be ligature mark, as he
found in the instant case, which might have caused the death of
deceased victim.
Thus, noticing such continuous ligature mark Autopsy Surgeon
opined in absence of poison in the viscera of deceased that it was a case
of homicidal death, and ante-mortem in nature.
Though, death of deceased was contended grossly to be suicidal
one by the appellant, contrary to the case of homicidal death, as revealed
from Autopsy Surgeon’s report, but surprisingly such death of the
deceased victim could not be challenged in the cross-examination of
witnesses, specially to post-mortem doctor proposing that such death of
deceased would not have held with use of telephone chord seized. It
19
would be insignificant if the seized chord is known for the use of tape
recorder or telephone. Relevant fact is that death was caused with use of
such chord, as produced before P.M. doctor before holding his postmortem
examination.
Alternatively, it may be put in this way that homicidal death stated
to be caused with use of telephone chord could not be challenged even by
putting suggestion to the effect such homicidal death of deceased would
not have been possible with use of such telephone chord. Having noticed
continuous ligature mark, Autopsy Surgeon completely eliminated the
possibility of causing any suicidal death of deceased. And thus, the
homicidal death of deceased with use of telephone chord remained unchallenged,
and unshaken during the ordeal of cross-examination of
Autopsy Surgeon.
PW-9 is a police constable, and a seizure witness in respect of two
pieces of tape recorder chord (vide Exhibit-7). Admittedly, the seized two
pieces of chords, seized as Exhibit-7, could not be produced during trial
of this case so as to get the same identified, at least by the seizure
witness, and by the Autopsy Surgeon.
Learned advocate for the appellant putting much emphasis on the
ground of non-production of offending weapon in the instant murder trial
contended that it would be most unreasonable to hold that in-law’s
20
members had used those seized chords as an offending weapon to cause
death of deceasd in her matrimonial home.
Reliance was accordingly placed by learned advocate for the
appellant on such issue, on a decision reported in 2010 (6) SCC 525
delivered in the case of Niranjan Panja Vs. State of West Bengal, that
non-production of offending weapon in murder trial would lead to a
major discrepancy in the prosecution evidence, and in the absence of any
explanation being offered by the prosecution regarding non-production of
offending weapon during trial, the evidence adduced by the prosecution
should have been discarded after providing benefit of doubt in favour of
accused persons for non-production of such offending weapon.
The only question thus, required to be answered by us is whether
such non-production of weapon in a murder trial will lead to the
rejection of the testimony of Autopsy Surgeon or not.
In the decision referred above by appellant, the conviction in a
murder case was upheld by the High Court relying upon the
circumstantial evidence upon due consideration of the theory of “last
seen together”, and further discovery of weapon, as used in the
commission of murder being a ‘katari’ in the referred case. Investigation
recovered a ‘katari’ being offending weapon in application of provision of
Section 27 of the Evidence Act. The Apex Court held in such referred
case that the proof of discoveries itself was doubtful, and further the
21
‘katari’ was never produced before the court during trial, which was said
to have been lost and never seen the light of day before the court. The
discovery of weapon being doubtful together with non-production of
offending weapon in court in absence of any explanation for nonproduction
of the same lead to the rejection of testimony of Autopsy
Surgeon. Resultantly, accused was favoured with acquittal.
In the instant case, deceased victim being the second daughter of
the de-facto complainant was put to suffer her death by hanging in her
in-law’s house. The south facing room situated to the north of in-law’s
house was ordinarily shared by deceased and her accused husband,
after they got married. In this case, no explanation was offered by
prosecuting agency for the non-production of such pieces of chord, said
to be seized in this case, as per PW-9 (a seizure witness).
We should not be forgetful to take note of evidence adduced in the
testimony of PW-7 (Autopsy Surgeon) that the seized chord was shown to
Autopsy Surgeon by the escorting police producing the dead body for
holding post-mortem examination. Such part of the evidence of Autopsy
Surgeon remained undisturbed even in cross-examination of Autopsy
Surgeon.
The established fact is that there was an unnatural death of
deceased held within seven months of her marriage. Such unnatural
death was admittedly held in the in-law’s house of deceased victim. There
22
was sufficient evidence to show that the victim received oppression, illtreatment,
torture, cruelty in her in-law’s house by her in-law’s members
for her black complexion. Victim was further threatened to be driven out
from her matrimonial home for giving second marriage of her husband.
The in-law’s house of the deceased being situated at a distance of
6-7 miles away from the paternal house of the deceased victim, it was
quite impossible for the de-facto complainant family members to
physically present at the time of commission of cruelty upon the victim in
her in-law’s house. The neighbouring people of the accused persons,
though examined like PW-5 and PW-6, remained silent on such issue.
Prosecution is thus in an extream difficult situation to adduce
foundational evidence in respect of facts, which are known exclusively to
the knowledge of the in-law’s members, as to how the deceased victim
suffered her death in her in-law’s house.
It would be profitable here to take recourse to Section 106 of
Evidence Act at this juncture for its appropriate application, as the
injured victim suffered death in her dwelling home, where the victim and
her husband ordinarily resided. Section 106 of Evidence Act provides
inter alia that when any fact is specially within the knowledge of any
person, the burden of proving that fact is upon him. Learned advocate for
the appellant in his honest effort persuaded us to impress that since
deceased victim suffered her death by hanging in consequence of her
23
frustrated previous love affair with someone, Section 106 of the Evidence
Act would not have any application over the present facts and
circumstances of this case.
We are not prepared to accept such contention of the appellant,
when victim was put to suffer her death by hanging in a room situated to
the north of in-law’s house of deceased victim, ordinarily and commonly
shared by deceased herself and her accused husband together after they
got themselves married. That being the present situation, the accused
husband having failed to offer any explanation for the injuries caused to
his wife, the failure would lead to the conclusion that the death of the
deceased had occurred in the custody of accused husband.
The denial of prosecution case by accused husband coupled with
absence of explanation, in our considered view, appears to be
inconsistent with the innocence of accused, but consistent with
hypothesis of guilt of accused husband. More so, since deceased was put
to suffer her death in her matrimonial home in the manner as disclosed
by Autopsy Surgeon, in the absence of any cogent evidence in the crossexamination
of witnesses that there was a fair possibility of an outsider
committing the offence, the plea of denial with false implication is
inconsequential. It was for the husband alone to explain the grounds for
the unnatural death of his wife.
24
Shelter may be taken profitably on a decision reported in 2014
(12) SCC (211) rendered in the case of State of Rajasthan Vs. Thakur
Singh, wherein the law regarding the special knowledge available under
Section 106 of Evidence Act was reinforced. Paragraph-22 of such
judgment pertinently may be mentioned as hereunder.
“22. The law, therefore, is quite well setlled that the burden
of proving the guilt of an accused is on the prosecution, but
there may be certain facts pertaining to a crime that can be
known only to the accused, or are virtually impossible for the
prosecution to prove. These facts need to be explained by the
accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts.”
The deceased victim thus having suffered unnatural death in a
room of her in-law’s house, ordinarily shared together with her husband,
the husband would necessarily under his obligation to give an
explanation for the cause of her death either furnishing statement under
Section 313 Cr.P.C. or by adducing evidence independently after entering
into defence under Section 233 Cr.P.C.
True it is that there was no explanation for the non-production of
offending weapon in court, and there was no explanation offered to that
effect by the prosecuting agency, but at any rate the offending weapon
cannot be said to have been lost for want of explanation being offered.
Non-production of offending weapon in the absence of any explanation
may be an error or latches on the part of prosecuting agency, but such
25
error or omission would not itself discard the testimony of Autopsy
Surgeon. When the homicidal death of the deceased held in her
matrimonial home caused with use of chord, as already seized and
produced before the Autopsy Surgeon at the time of post-mortem
examination, remained unchallenged in the cross-examination of
witnesses, particularly, the Autopsy Surgeon, mere non production of
offending weapon in the court, and mere non-showing of the same to
Autopsy Surgeon at the time of his deposition in court would be
inconsequential , and in no manner it would weaken the prosecution
case.
It would be relevant here to take recourse to a decision reported in
2017 (13) SCC 81 delivered in the case of Sudha Renukaiah & Ors.
Vs. State of Andhra Pradesh, wherein non-production of weapon to the
P.M. doctor at the time of his deposition in court was held
inconsequential, keeping in view the concurrent finding of death, reached
by the Trial Court and subsequently affirmed by High Court as regards
homicidal death of the deceased upon making reliance on the testimony
of Autopsy Surgeon with other eye-witnesses.
The decision thus referred by the appellant in the case of Niranjan
Panja (supra), will thus have no application over the factual scenario of
this case. More so, the facts covered in the referred case, as cited by the
appellant are distinguishable on facts.
26
When deceased was put to suffer her death by hanging, the cause
of which being exclusively explainable by the accused husband himself,
non-production of the offending weapon would not matter much, so as to
cause damage to the testimony of prosecution witnesses, particularly to
Autopsy Surgeon. Though non-production of offending weapon was
grossly challenged in appeal, but during trial accused persons never
preferred to exercise their option under Section 233 Cr.P.C. requiring
Trial Court for production of same by prosecution in support of their
defence, and as such the same can not be lightly viewed.
As regards the witnesses examined by the prosecution particularly
PW-1, 2, 3 and 4, who were contended to be partisan by themselves
should not be relied upon for their interest over this case. Partisan
witnesesses themselves would not be a strong ground for rejection of
their testimony. What is necessary in the given context of this case is
close scrutiny of the evidence adduced by PW-1, 2, 3 and 4, and
acceptance of the same after caution. Upon applying the same principle,
it appears that testimony of such witnesses, referred above, are
intrinsically reliable being inherently probable, and their testimony
would not be liable for rejection by reason of their inter se relation.
The facts and circumstances would thus unerringly point to the
guilt of accused husband/appellant for causing homicidal death to
deceased/wife by strangulation for his non-satisfaction over the black
27
complexion of his wife, which led to give birth his motive to cause death
of his wife.
The occurrence was held admittedly on 24.06.1998, and the F.I.R.
was lodged on 26.06.1998, by the de-facto complainant/father.
According to appellant, the delay caused in lodging the F.I.R. rendered
the prosecution case to be improbable, and doubtful also. It is settled
proposition of law that delay in lodging the F.I.R. if remaining unexplained,
would leave materials for concoction, and embellishment in
the version of prosecution story during the intervening period of delay.
In this case the post-mortem was held on 25.06.1998. According to
PW-1, appellant’s house was at a distance of 6/7 miles from the house of
de-facto complainant/father. The eldest son-in-law furnished the death
information of victim to de-facto complainant. The house of accused
persons was at a distance of less than two (2) miles away from the house
of eldest son-in-law (PW-2).
Both PW-1 and PW-2 visited the in-law’s house of deceased victim
on the relevant date after receiving information of death, and since it was
night, they could not go to the police station. The de-facto complainant
father after being provided with the information of death, visited the inlaw’s
house of his daughter being accompanied by PW-2, when the dead
body of deceased had already been sent to police station for post-mortem
examination.
28
Thus, complaint came to be lodged on 26.06.1998, by de-facto
complainant father, who by this time managed to cope up his griefs and
frustration, and found reasons to seek justice for the injustice done to
his daughter. The explanation is thus offered in the evidence. In our
view, the same appears to be sufficient and cogent. The delay thus
caused, as contended, would be without any significance.
The post conduct of the mother-in-law revealed from the testimony
of PW-5 and 6, who found mother-in-law crying taking the dead body of
deceased victim, according to appellant, would not necessarily leave
materials against her for commission of a homicidal death, though it
might be suggestive of suicidal death.
The father-in-law of deceased (Hasaruddin Miah @ Mia @
Hachheruddin Mia) having already suffered death during the pendency
of this case, the instant appeal be taken to have dropped against him.
The person committing homicidal death would ordinarily leave the
place of occurrence anticipating the consequence. When mother-inlaw/
accused was found to remain present in her own house, even after
the crime was over, and seen crying taking the dead body of her
daughter-in-law, such post conduct of accused/mother-in-law is a strong
fact requiring due consideration, as focused by the learned advocate for
the appellant.
29
As has already discussed that the unnatural homicidal death of
deceased was held in her dwelling room of her in-law’s house, ordinarily
shared by the deceased and her husband together after they got
themselves married, and the cause of such death being pre-eminently
and exceptionally within the knowledge of her accused husband, which
remained un-explained by accused husband himself, recording an order
of conviction under Section 302/34 I.P.C. as against appellant motherin-
law even after taking note of such facts, referred above, would be
without any reasons and not justified accordingly.
The commission of cruelty upon the deceased though proved
against the mother-in-law under Section 498A read with Section 34
I.P.C., but she should not have been held convicted for causing
homicidal death of deceased victim under the behest of Section 302/34
I.P.C. on the simple ground that death of the victim was held in her
matrimonial home.
The essence of Section 34 being conscious meeting of minds of
persons participating in the criminal action, there is hardly any scope of
drawing application of Section 34 against the appellant mother-in-law for
causing homicidal death of victim, which was admittedly held in a room
occupied by deceased herself and accused husband ordinarily together.
For the discussions made hereinabove, we had no occasion to look
the prosecution case with doubt, disbelieving the version of homicidal
death of deceased victim opposed to the suicidal death, as attempted to
be set up by appellant. The witnesses examined during trial, except PW-
5, are consistent in their respective version, and they are reliabe also.
The credibility of such witnesses including the Autopsy Surgeon/PW-7
could not be shaken to doubt in cross-examination, favourable to the
purpose of accused appellant.
The conviction reached by the Trial Court under Section 498A/34
I.P.C., as against the accused appellant husband and mother-in-law
appellant would remain undisturbed.
The conviction and sentence as against the accused mother-in-law
needs sufficient modification. Accordingly, we modify the conviction and
sentence of accused mother-in-law under Section 498A/34 I.P.C., and
she deserves to be favoured with an order of acquittal for offence under
Section 302/34 I.P.C.
We, however, do not want to interfere with the conviction and
sentence recorded against the accused husband appellant for sufficiency
of the evidence collected against him. We thus dismiss the appeal, as
against the appellant husband, maintaining his conviction and sentence
under Section 498A/302/34 I.P.C. Both the sentences, as awarded by
Trial Court, to run concurrently.
Accused mother-in-law be set free from correctional authority
forthwith upon completion of sentence awarded against her under
Section 498A/34.
The appeal thus stands disposed of.
Department is directed to send a copy of this judgment along with
Lower Court Record to the concerned Trial Court without causing any
delay through the concerned District Judge.
Department is further directed to send a copy of this judgment to
the concerned correctional home.
Urgent certified copy of this order, if applied for, be given to the
appearing parties as expeditiously as possible upon compliance with the
all necessary formalities.
I agree.
(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)
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