A. Barua, J.
1. This is an appeal against the judgment and order dated 9th December, 1998 passed by the learned Additional Sessions Judge, Contai, Midnapore whereby the learned Additional Sessions Judge had convicted the accused/appellant under Section 302 IPC in connection with Session Trial Case No. XXX/ January /1994 arising out of G.R. Case No. 674/90.
2. A grisly murder on the sea beach of Digha had taken the life of a young house-wife on September 5, 1990. The unfortunate victim was Minati, aged 22. The killer was her own husband, Arun Das, the accused-convict, aged 26. The manner was brutal and beastly--the husband slit the throat of his wife resulting in profuse bleeding. She died of her injuries the same day at the local hospital. The time was 5 p.m. when the couple were seated under the 'Jhaw tree' with their baby in the beaches of Digha. At that time there were some fishermen around. One woman who was walking on the beach reported to one witness (PW 1) that the accused was about to kill his wife at the said place. Witnesses rushed to the spot and it was seen that the wife was runnig towards the road with her throat slit and profusely bleeding. The accused Arun Das was seen running away with the child along the sea beach. The accused was nabbed and the blood stained razor was recovered from the stitched fold of his trouser. The accused also made a confession before the witnesses that he had killed his wife. Police came, seized the razor and other blood stained things and prepared a seizure list, the accused was arrested. The victim, that is the wife, was rushed to the local hospital in a van-rickshaw and she succumbed to her injury at the hospital. On 6.9.90 the Police made an inquest on the dead body of the victim. The post-mortem examination on the dead body of the victim was made on 6.9.90 by the doctor (PW 12) and according to him death was due to severe haemorrhage from the wound, anti-mortem and homicidal in nature. On the basis of written complaint by one of the witnesses (PW 1) formal FIR was drawn up by the Police being Digha P.S. Case No. 29/90 on 5.9.90. After investigation charge sheet was submitted and the case was committed to the Court of Sessions. Charge was framed against the accused person under Section 302 IPC. The accused Arun Das pleaded not guilty and claimed to be tried. This is the summary of the prosecution case.
3. The defence of the accused Arun Das is one of innocence and false charge. According to the accused he had travelled to Digha with his wife who wearing gold ornaments and they were roaming about at the sea sight when his wife told him to fetch some food. He obliged and went to bring the food from a place which was about 15/20 minutes walk from there and when he retuned to the place where he sat with his wife and child, he saw that his child was crying and his wife was lying there with her throat cut. The accused maintains that his wife was killed by some miscreants and not by him.
4. The accused stood his trial for having allegedly committed an offence punishable under Section 302 IPC before the learned Additional Sessions Judge, Contai, Midnapore and the point for determination was whether the accused had intentionally murdered his wife.
5. The learned Additional Sessions Judge, Contai, Midnapore by his judgment and order dated 9.12.98 found on evidence that the prosecution was able to prove its case under Section 302 IPC, that the accused Arun Das had intentionally killed his wife, Minati (r) Sumitra on 5.9.90. The accused was accordingly found guilty under Section 302 IPC and was sentenced to suffer rigorous imprisonment of life and to pay fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for 2 months, since he did not find that it was a fit case for a death sentence.
6. We have gone through the judgment and order passed by the learned Additional Sessions Judge and we find that he had mainly relied upon the oral evidence of several witnesses for the prosecution, the medical evidence, the extra-judicial confession made by the accused before the witnesses in coming to the conclusion he did. He had also totally dismissed the defence plea. The accused being aggrieved by the decision of the learned Additional Sessions Judge has filed the instant appeal.
7. Let us now see independently of our own how the prosecution case stands and also how good is the defence story is.
8. The case is based on circumstantial evidence. Nobody had actually seen the accused slit the throat of his wife on the sea beach of Digha. But at the same time, it must be said that the case falls fractionally short of direct evidence. The horrific moment of the murderous assault, that of the throat of the victim being slit by the killer with a sharp razor (khur)--that only is missin. The rest are all a solid chain of circumstantial evidence that follow in quick, terrifying succession.
9. However, since the case is based on circumstantial evidence we must need take the necessary caution and circumspection that judicial pronouncement by the Apex Court have repeatedly mandated.
10. In a very recent case, Subhash Chand v. State of Rajasthan, : (2002)1SCC702 , a three Judge Bench of the Supreme Court, has this to say, quoting Dhananjoy Chatterjee v. State of West Bengal, : [1994]1SCR37 , about circumstantial evidence.
'In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain or the evidence must be so complete as not to leave any reasonable ground for the behalf consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not mere indignation of the Court can form the basis of conviction and more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.'
11. Now, this is precisely where the learned counsel for the defence shall specifically point his finger at-- that the extra caution that appreciation of circumstantial evidence in a case like this demands. He has to submit that the chain of circumstances is not complete, that there are several question marks in the evidence of witnesses to raise doubts about the veracity of the prosecution case. Moreover, the learned counsel for the defence would have it that the accused in his examination under Section 313 Cr.PC has laid bare a story of his own which tells that he is not author of the heinous crime, that in his temporary absence from the company of his wife (victim) and their baby some miscreants must have murdered his wife and according to the learned defence counsel this at least lends a very high degree of probability thereby substantially weakening the prosecution case. He has further submitted that though the prosecution case is that the victim was murdered with the help of a razor with her throat slit, that all-important weapon of offence has not been produced in Court and made an exhibit. According to him all these missing links in the circumstantial evidence coupled with the defence version entitle the accused to a benefit of doubt and he should be acquitted.
12. The learned Additional Public Prosecutor having analysed the positive oral testimony of several witnesses, who were present at that time when the occurrence took place on the beaches of Digha and also having laid special emphasis on the extra-judicial confession made by the accused before the witnesses, the supporting medical evidence of doctor who held the post-mortem examination on the dead body of the victim and the evidence of another doctor of the hospital (PW 14) before whom the victim had made a dying declaration implicating the accused, has straneously submitted before us that all the circumstances taken together make a solid, compact chain and there is absolutely no missing link to make room for any sort of doubt in the prosecution case. Also, according to him the accused has only made a futile attempt to get away from the truth of the prosecution version by setting up a false case of alibi which only would strengthen the prosecution case. He finally submits that the learned Additional Sessions Judge was perfectly justified in finding the guilty of the accused for having murdered his wife and his judgment and order should be sustained.
13. Now, we have had a close look at the evidence adduced by several prosecution witnesses and we have also given due consideration to the defence story set up by the accused in his examination under Section 313 Cr.PC.
14. The prosecution has in all examined 14 witnesses. Of them PW 1, PW 6, PW 7, PW 11, PW 12 and PW 14 are material witnesses whose testimony have a great bearing on the veracity of the^prosecution case. PW 1 had first located the husband (accused), the wife (victim) and their child sitting under the 'Jahu tree' at Maity Ghat at Digha by the side of the sea beach there. It was 5 p.m. on 5.9.90. PW 1 was a fisherman who that day went out to catch fish in the sea along with other fishermen including Madhusudan Jana (PW 8) and others. He identified the accused in the Court room. He has said that some walking women (leaf-gathering women as per PW 8} reported to them that a woman was about to be killed by the accused. PW 1 has further said this: 'We saw that the lady runnig towards the road with her throat slit by razor. She was profusely bleeding. She fell down on the road. We sent the injured lady to the Digha State General Hospital by a van rickshaw. The accused Arun Das was fleeing by the side of the sea water taking the baby in his arm. We rushed behind him and caught hold of him. The public gathered, assaulted the accused. On search a razor in the stitched fold of his trouser remained concealed. That razor was blood stained. The accused person confessed that he had incised the throat of the lady by means of a razor. Police arrived and took the accused person to the P.S. I also went to the P.S.' In fact, this PW 1, Hari Das, is the one who had made a written complaint and he proved the same which was in his own hand-writing and signature. He also signed the seizure list after the razor and other blood stained articles were seized by the police. PW 8, is another fisherman like him who was at that time present in the sea beach. He has also deposed almost exactly on the lines of PW 1, Hari Das and corroborates him in material particulars. They are in no way materially shaken in their cross-examination. This is not all. Further corroboration comes from PW 6, a rickshaw puller, Gouranga Jana and another rickshaw puller, PW 7, Purna Ch. Pradhan. According to P.W. 6, at that point of time he was on the main road near that Maity Ghat and he says that there was a hue and cry and he rushed to the spot with his van rickshaw. Then he says 'I saw the woman in restless condition. Her throat was slit. I also saw her murderer to be running away with a baby towards the sea. The said man is present in Court (identified the accused on dock). He confessed that he had slit her throat with a razor. He has further said when the police arrived, the injured woman in restless condition was lifted upon his rickshaw van and he took her to Digha Hospital. PW 7 othe other rickshaw puller has said that he also went to the spot and found the woman with her throat slit lying down in a restless condition. People raised the cry, 'Palalo Palalo'*. Then he said-- 'We ran behind the accused. We nabbed the accused by the side of the sea water. The said accused person is present today in Court (identified). The accused was at that time held a baby in his arms. On search of the person a razor, could be recovered. That razor was stained with blood.' He has further said that 'The accused person implored for sparing him admitting his wrong and mistake. He begged to be excused. He confessed that he has murdered.' Both these witnesses, PW 6 and PW 7 have been subjected to searching cross-examination and they also come out unscathed from the test. In fact, all these witnesses namely PW 1, PW 8, PW 6 and PW 7 were material eye-witnesses and more importantly natural-witnesses without having any reason to falsely implicate the accused person.
15. Nor this is all. The oral testimony of the witnesses aforesaid get enought of support and credence from the medical evidence as well. PW 12, Dr. T.K. Panigrahi is the doctor who had done the post-mortem examination on the dead body of the victim-wife, Sumitra Das aged 20/22 when the dead body having been identified by constable Nemal Ch. Mondal. He has said this. On examination I found the following;
1. Tranverse incised wound of little of the front of neck 5 inch length involving trachea, large vessels and muscles.
2. Both lungs pale.
3. Heart empty.
4. Stomach contained 3 to 4 ounce fluid, acidic smell with food particles.
5. Lever spleen kydnys pale.
6. Blood sample preserved as per requisition.
In my opinion, death was due to severe haemorrhage from the wound, ante-mortem and homicidal in nature. This is the report written by me bearing my official seal, ext. 7.
The wound or injury could be caused if the throat is cut by razor. This wound was sufficient to cause death in the normal circumstances.'
However, in his cross-examination it has transpired that he has said that this type of injury could be caused by cutting by sharp knife and not by sharp blade. But the overwhelming evidence of the witnesses is-- the throat of the victim was slit by a razor and all the aforesaid witnesses actually found the said razor which was blood stained and recovered from the concealed part of the trouser of the accused. So, the conclusion must be-- that the victim was murdered by the said sharp cutting razor and the fact that it could not be produced in Court makes hardly any difference, in our opinion.
16. Added to all these we might seriously take into consideration the two other aspects of the prosecution case, namely the dying declaration made by the victim-wife before PW 14, Dr. N.K. Paul and the extra-judicial confession, made by the accused before several witnesses.
17. As for the dying declaration the evidence of PW 14, Dr. N.K. Paul goes like this-- 'I am M.O. now posted as Supdt, Digha State General Hospital. On 5.9.90 and 6.9.90 I was posted in the same place with some designation. On 5.9.90 an injured body was brought to our hospital......The injured came to hospital. She suffered cut injury on her neck with profuse bleeding. At the relevant time I was present in the emergency room. This patient was brought by some local persons. On being enquired by me from the injured she disclosed that she was attempted to murder by her husband with sharp weapon.' In cross-examination the doctor has specifically said that the statement before him was made by the patient herself and that she was in a wretched condition but somehow could speak. The point is, at that relevant point of time, this witness was holding a very responsible post at the Digha State General Hospital and he was the superintendent of that hospital. Except some general suggestion by the defence in his cross-examination that his evidence was entirely false, there was nothing to show that he had any particular reason to be inimical to the accused person to falsely implicate him in a murder case. Nor could he be said to be an interested witness to side with the prosecution. Morevover, we are not depending on this dying declaration of the victim before him alone. Or, in other words, the prosecution case does not stand on this solitary piece of evidence as dying declaration. It only supports and renders abundant credence to the prosecution case already held good by the testimony of other witnesses. In this context also we should not have any reason to disbelieve this doctor and the dying declaration made before him, only firms up the prosecution story.
18. As for the extra-judicial confession we have found that the accused had confessed that he had killed his wife before as many a 4 witnesses viz. PW 1, PW 6, PW 7 and PW 8, which we have already discussed. Here, also the point is, a great deal depends on the turstworthiness of the witnesses to whom such confessions are made and as we have already stated, all these witnesses to whom confessions were made namely, PW 1, Hari Das, PW 8, Madhusudan Jana, PW 6, Gouranga Jana and PW 7, Purna Ch. Pradhan are all natural witnesses with no apparent inclination or motive to falsely implicate the accused. To our mind, they sounded truthful and the extra-judicial confession should go-- not necessarily by itself but together with other dependable evidence which fortify the prosecution case. In this connection wi might rely on two recent decisions of the Supreme Court.
19. In the State of Punjab v. Gurdeep Singh, : 1999CriLJ4597 , the Supreme Court has laid down that the evidentiary value of the extra-judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the Court to decide on the accpetability of the evidence having regard to the credibility of the witnesses. The Court has further said that extra-judicial confession can be treated as substantive evidence if there is some assuring material or circumstances.
20. As we have already discussed, as for some assuring material or circumstance, in this case, there are aplenty and as already said, the witnesses to whom the confession was made by the accused were dependable. In yet another very recent decision of the Supreme Court in the case of Kelpana Mazumder v. State of Orissa reported in 2002(3) Crimes 114 (SC); also in 2002(4) AICLR, (SC) 120, the Apex Court has to say this at para 19 of the judgment:
'We are conscious of the fact that extra-judicial confession for making it a basis for conviction by itself is a weak piece of evidence, such evidence deserves strict scrutiny. At the same time, however, strong circumstantial evidence can get strength from extra-judicial confession.' In our instant case this decision applies with great force since we have had strong circumstantial evidence enough which can indeed get strength from the extra-judicial confession.
21. Lastly, the story set up by the accused in his examination under Section 313 CrPC is plainly one of alibi-- that at the relevant point of time when the occurrence took place, he was away to buy some food at a place which was 15/ 20 minutes' walk from the place of occurrence, that when he returned there he saw his wife lying there with her throat cut. According to him it must have been some miscreants who did the murder and not he. But this story is easier said than swallowed. In the first place, the accused has absolutely nothing to show that that point of time, he was elsewhere at the place where he actually bought the food. In the next place, we might refer to a recent decision of the Supreme Court that explains alibi. The Supreme Court says that the word 'alibi', a Latin expression, means and implies in common acceptance 'elsewhere', that it is a defence based on the physical impossibility of participation in a crime by an accused in placing the latter in a location other than the scene of crime at the relevant time, shortly put, the presence of the accused elsewhere when an offence was committed Distance thus would be a material factor in the matter of acceptability of the plea of alibi. This was in Munshi Prosad v. State of Bihar, : 2001CriLJ4708 . In our present case, a distance which was only 15/20 minutes' walk from the place of occurrence cannot possslbly be said to be 'presence elsewhere'. It was not an impossibility anyway to be at the place of occurrence and also at the place where the accused had allegedly gone just to buy some food. To our mind, the plea of alibi must miserably fail. And once it does, as a false plea as it looks, it boomerangs on the accused-- only to further fortify the prosecution case.
22. Thus, we find on ultimate analysis that all the circumstances so established in the case are conclusive in nature and consistent only with the hypothesis of guilt of the accused. The chain of evidence is complete and leaves no room for any reasonable belief consistent with the innocence of the accused.
23. The learned Additional Sessions Judge was fully justified in making the conclusion he did and rightly convicted the accused for the gruesome murder of his wife and the sentence was appropriate in the facts and circumstances of the case. No interference with his judgment and order is called for and the same is affirmed.
24. The appeal is dismissed.
25. Urgent xerox certified copy of this order, of applied for, be given to the parties.
A. Talukdar, J.
26. I agree.