Judgment:
Ashim Kumar Banerjee, J.
1. On a sum total of the evidence as laid before the learned trial Judge it reveals that Rabu Sekh married Malina Begum, daughter of Kalimuddin Sekh, de facto complainant. Malina was deaf and dumb. On the Astamangala day the couple visited Kalimuddin's house on April 11, 1986. At night the couple went to bed after having dinner. At about 2:30 A.M. Kshudu Sekh, the brother of Malina raised hue and cry and drew attention of the inmates of the house and they found Malina in sitting position in the room where the couple had spent night. Malina was found in sitting position leaning against the wall and her sari was tied in her neck and the other end was tied with a bamboo bar fixed on the walls for the purpose of keeping clothes. The end which was tied with the bamboo bar was loose and the bamboo bar was about four feet from the floor excluding the possibility of hanging from there. She was taken to Kandi Hospital where she was declared dead. Rabu Sekh was arrested and was charged under Section 302 of Indian Penal Code.
2. On a detailed analysis it is found that the inmates more or less corroborated each other to the effect that they had seen the couple alive last time when they had gone to the room for sleeping after the dinner. At about 2:30 A.M. Rabu called Kshudu Sekh and informed him that Malina had been missing from the room. All the inmates came after being alarmed and found Malina in sitting position in the same room itself. She was found sitting leaning on the wall and stretching her legs. One end of her sari was tied with the neck and the other end fixed with the bamboo bar loosely and the bamboo bar was affixed on the wall just four feet from the floor. This would totally exclude the possibility of hanging from the said bamboo bar. The medical evidence suggests that death was due to throttling. There had been an extra judicial confession by Rabu that he had murdered Malina by throttling. Such extra judicial confession cannot, per se empower the Court to hold Rabu guilty of the offence unless there was corroboration which was found present in the case in hand. The learned trial Judge also considered the medical evidence where the Hyoid bone and Laryngeal cartilages were found intact which was not possible in case of death caused due to hanging. The doctor, however, deposed that the death could have been caused by hanging being ante mortem and suicidal in nature. The doctor, however, in his evidence admitted that there had been nail marks on the neck of the deceased which would suggest resistance from the victim. The doctor also deposed that as the Hyoid bone was intact the possibility of throttling could be excluded. This part of the evidence was disbelieved by the learned Judge and in our view very rightly, even if we accept the opinion of the doctor that since Hyoid bone was intact the possibility of throttling could be excluded. The same logic could apply in case of hanging as throttling could be possible by giving pressure from the front side avoiding fracture of the Hyoid bone which is not possible in case of hanging as the knot would not only block the laryngeal cartilages but also would fracture the Hyoid bone. In our view, since the Hyoid bone was intact the possibility of hanging must be first excluded before excluding the possibility of throttling.
3. The learned Counsel for the appellant contended before us that a young boy marrying a girl just eight days before the incident, could not be accused of being involved in the incident unless there was definite reason proved for his involvement. No such evidence did come out during evidence. The learned Counsel also contended that there was no eyewitness to the incident. The accused himself informed the inmates of the family about the incident of missing of the girl. As a natural consequence he would first try to escape and find out ways and means to destroy evidence rather than calling the inmates of the house. This argument does not impress us.
4. When there is no eyewitness to hold someone guilty of the offence the Court must get unimpeachable evidence to come to a conclusion that there was a complete chain which would lead to the irresistible conclusion that it was the accused only who was involved in the crime and nobody else.
5. The learned Counsel in support of his contention relied on the following decisions:-
i) Sharad Bridhichand Sarda v. State of Maharashtra reported in 1984 5 SCC 116
ii) State of Uttar Pradesh v. Ashok Kumar Srivastava reported in 1992, Cri LJ 1104
iii) State of Haryana v. Ram Singh reported in : 2002, Volume-II, Supreme Court Cases, Page 426
iv) Mousam Singha Roy and Ors. v. State of West Bengal reported in : 2003, Volume - XII, Supreme Court Cases, Page 377
v) Radha Mohan Singh Alias Lal Saheb and Ors. v. State of Uttar Pradesh reported in : 2006, Volume-II, Supreme Court Cases, Page 450
vi) Sunny Kapoor v. State of West Bengal reported in 2006 7 SBR 463
vii) Asraf Sk and Anr. v. State of West Bengal reported in 2008 7 Sc 485
viii) Mula Devi and Anr. v. State of Uttarakhand reported in 2008 7 Supreme 460
ix) Baldev Singh v. State of Haryana reported in 2008 8 Supreme 544
x) State of West Bengal v. Dipak Haldar and Anr. reported in 2009 4 Supreme 393
xi) Narayan v. State of Rajasthan reported in 2009 2 Supreme
xii) Ramesh Bhai and Anr. v. State of Rajasthan reported in 2009 3 Supreme 722
6. In the case of Sharad Bridhichand Sarda (Supra) the Apex Court in a three Judge Bench decision discussed the law in general relating to suicidal death as also homicidal death and the circumstantial evidence pertaining thereto.
7. In the case of State of Uttar Pradesh v. Ashok Kumar Srivastava (Supra) in another bride burning case, the accused and the in-laws of the victim caused torture on the deceased victim. None of the accused helped her to save herself from burning. There was no other reason to implicate the accused falsely. Considering this evidence the Apex Court reversed the decision of the High Court and held the accused guilty of the offence.
8. In the case of Ram Singh v. State of Haryana (Supra), the medical evidence was contrary to the version of the eyewitness. The Apex Court held it not dependable or trustworthy.
9. In the case of Mousam Singha Roy and Ors. v. State of West Bengal (Supra), the Apex Court considered the plea of the defence that the suggested place of occurrence was a public place and was crowded by people and it was not possible for the accused to have escaped after committing the murder of the deceased victim without being noticed or chased by the police. The incident occurred near Goomti No. 12 at Howrah Bridge where hundreds of people were present during the alleged incident. The Apex Court observed that the prosecution case was totally opposed to ordinary human conduct. Considering other improbable suggestions of the prosecution the Apex Court allowed the appeal of the accused.
10. In the case of Radha Mohan Singh Alias Lal Saheb and Ors. v. State of Uttar Pradesh (Supra) the Division Bench of the High Court could not be unanimous on the trial Court judgment. The Apex Court observed that matter should be referred to a third Judge who was entitled to form independent opinion and was not bound to accept either view.
11. In the case of Sunny Kapur v. State of Union Territory of Chandigarh (Supra), the Apex Court observed that it was improbable for the accused to make an extra judicial confession to unknown person.
12. In the case of Asraf Sk and Anr. v. State of West Bengal (Supra), the Apex Court considered a case on circumstantial evidence after holding that the inference of guilt could be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The Apex Court further observed, the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be interfered from those circumstances.
13. In the case of Mula Devi and Anr. v. State of Uttarakhand (Supra), in another bride burning case, it came out in medical evidence that the cause of death was asphyxia as a result of antemortem strangulation. It was also established that there were burn injuries. The defence could not adduce any evidence that no one else was there in the house at that juncture. The Apex Court however, on analysis of the evidence was not satisfied to the extent that the mother-in-law and the sister-in-law could be held guilty based on circumstantial evidence.
14. In the case of Baldev Singh v. State of Haryana (Supra), the Apex Court held in the same way as in the case of Asraf Sk and Anr. v. State of West Bengal (Supra). These two judgments were delivered by the same bench.
15. In the case of State of West Bengal v. Dipak Halder (Supra), in a bride burning case, the Apex Court observed that High Court did not analyse the circumstance before coming to a conclusion that the circumstances did not constitute a complete chain as the High Court could have considered absence of any material to show that the stove was burst causing injuries to the deceased.
16. In the case of Narayan v. State of Rajasthan (Supra) the death was caused by strangulation. There was no eyewitness. The dead body was found in a barrel at a bus stand. It could not be identified initially. Photograph was published in newspapers when two of the prosecution eyewitnesses identified the dead body. The Apex Court discarded the High Court observation that the accused was living with the deceased as a couple before the occurrence. The accused was absconding selling his belongings and disappeared for about four/five years. The High Court also considered the evidence that the accused had hired a jeep on rent loading his goods including a trunk which contained the dead body and the trunk was recovered from Unjha where the dead body was found. The High Court was satisfied on the completion of chain and held the accused guilty of the offence. The Apex Court dismissed the appeal and affirmed the decision of the High Court.
17. In the case of Ramesh Bhai v. State of Rajasthan (Supra), Apex Court held identically as was held in the case of Asraf Sk (Supra) and Baldev Singh (Supra)
18. On a sum total of the decisions it is clear that in a case where the prosecution was not able to produce any eyewitness it was the duty of the prosecution to prove that the evidence so came up at the trial makes a complete chain of circumstance which would raise the pointer to the accused and the accused only. It would also suggest that no one else could be involved in such incident. If the test is positive the conviction is a matter of course.
19. Let us now consider the case in hand. The couple was last seen together for sleeping. There was no contradictory evidence on this score. Hence, prosecution was able to prove that the accused and the victim was last seen together by all. Hence, it was the onerous duty of the accused to offer explanation as to how the death had been caused. No attempt was made on the part of the accused to dispel the doubt in the mind of the Court. The accused did not adduce any evidence. In support of his defence on his examination under Section 313 of the Criminal Procedure Code the accused contended that the victim died by hanging. Apart from such cryptic statement, no attempt was made on the part of the accused to explain the circumstance. It is true that the accused called Kshudu at 2:30 A.M. and informed him that the victim had been missing from the room although the inmates of the house found the victim in a sitting position in the same room itself. The defence contended before us that it was not possible for a boy to kill his wife on the eighth day of the marriage in absence of any reason that came out in any evidence. We are not at all impressed. There might be hundred and one reasons for causing the crime. It is true that such reasoning did not come out in evidence. There was no ocular evidence which could throw us any light as to what had happened between the couple which resulted in such unfortunate incident. That does not mean that the accused did not have any responsibility to explain the incident to help the prosecution which would empower the trial Court to draw an adverse inference.
20. It was also contended on behalf of the accused that he himself called the inmates of the house without leaving the place which would support his plea of innocence. We again could not persuade ourselves to accept such contention. The accused himself knew that if he had left the place the pointer would be drawn to him and it would be difficult, if not impossible, for him to prove his innocence. There might be another reason for that. The accused thought that since the victim had died when he had called the inmates the inmates would exclude him from the list of suspects.
21. The couple went to their room for sleeping. They were inside the room. The accused informed Kshudu that the victim was not in the room. Kshudu along with other inmates found the victim in the room immediately after being called. The accused did not offer any explanation. We are of the view that the chain is complete.
22. The Court below rightly held the accused guilty of the offence. we have no hesitation to hold that there is hardly any scope for interference on that score.
23. The appeal fails and, is, hereby dismissed.
24. It appears from the letter No. 1443 dated April 1, 2009 of the Superintendent, Berhampore Central Correctional Home that the appellant is now in the said Correctional Home. Let a copy of this judgment be sent to the said Correctional Home for communication to the appellant.
25. Let a copy of this judgment be also sent along with the Lower Court Records to the learned Trial Court.
26. Urgent xerox certified copy will be given to the parties, if applied for.
Kalidas Mukherjee, J.
27. I agree.