Judgment:
1. In Sessions Trial No. 7(8)/03 arising out of Sessions Case No. 6(4)/02, the appellant/accused along with three others came to be tried on a charge of having committed murder of his wife Sandhya Rani Bag in between night of 21/22 November, 2005 in his house at village Shyampur within the jurisdiction of police station Joypur, District Bankura with a ‘sanda’.
2. The learned Additional District and Sessions Judge, Fast Track Court, Bishnupur, Bankura, by his judgment and order dated 30th July, 2005 found the appellant guilty of having committed offence punishable under Section 302 IPC and acquitted the co-accused of the said charge. The appellant was convicted and sentenced to suffer imprisonment for life and fine of Rs. 10,000/-, in default, to suffer RI for 2 years which is the subject matter of challenge in this appeal.
3. In nutshell, it is the prosecution’s case that the appellant-accused Raghunath Bag of village Shyampur was married to Sandhya Rani Bag, the daughter of Khudiram Mondal (P.W. 1). 2 The appellant-accused and his relatives were not happy with the dowry (‘Jautaka’) received in the marriage, they insisted Sandhya Rani to bring the additional amount of Rs. 12,000/-, but as their demand could not be fulfilled, the appellant-accused and the co-accused treated her with cruelty.
4. On 22nd November, 1995 Khudiram Mondal, the complainant, came to know from the people of the village that his daughter Sandhya Bag has been murdered by the appellantaccused with ‘sanda’. Thereafter, he along with co-villagers went to village Shyampur to the house of the appellant-accused and saw that his daughter was lying dead with her neck cut. A complaint was written by Debabrata Mandal (P.W. 12). In the meantime, the police party arrived at the place of occurrence and the complaint (Exbt. 1) came to be handed over to the police of Joypur P.S. It is the prosecution’s case that the appellant-accused Raghunath Bag having left the village came in the jeep with the police party. On reaching the place of occurrence, the police prepared the inquest report under Section 174 of the Cr. P.C. after registering FIR No. 38/95 dt. 22.11.95 read with Section 302/34 IPC against the appellant-accused and his relatives. The police also seized ‘sanda’, chaddar, pillow from the house. The dead body was sent for postmortem examination. It is the prosecution’s case that the appellant-accused made an extrajudicial confession in the presence of the villagers; some of whom have been examined as witnesses and the police party which had arrived at the place of occurrence of having committed murder of Sandhya Rani with ‘sanda’. Not only this, the appellant-accused also gave a written confession which came to be seized by the police. The police recorded the statement of the complainant and witnesses and also forwarded complainant and some of the witnesses to the Judicial Magistrate to record their statement under Section 164 Cr. P.C. After completing investigation, charge sheet came to be filed against the appellant-accused and his relatives, i.e., Ramprasad Bag, Joydeb Bag (both brothers of the appellant-accused), Smt. Tulsi Bag, mother of the appellant-accused and Jaga Shikari, friend of appellant/accused.
5. The Trial Court framed charges against the appellant-accused of having committed offence punishable under Section 302 IPC and against the co-accused for having committed offence 3 punishable under Section 302 IPC read with 34 of IPC. The appellant-accused and the coaccused pleaded not guilty and claimed to be tried.
6. The prosecution examined in all 20 witnesses in support of their case and on behalf of the defence two witnesses were examined. The appellant-accused has taken a plea of alibi, that at the relevant time he had gone to Jatra at Angaria. On conclusion of the trial, the appellantaccused was found guilty of having committed murder of his wife Sandhya with the weapon ‘sanda’ (katari); whereas the co-accused in the case came to be acquitted. It was also the case of the appellant-accused that during his absence his wife was killed by dacoits who had committed dacoity in his house.
7. Learned counsel appearing for the appellant-accused submitted that the entire prosecution case is based on circumstantial evidence and the alleged extra judicial confession (Exbt. 26). It is submitted that though the learned Trial Court has rightly not placed reliance on the extra judicial confession, but it has misled itself in coming to the conclusion that the appellant-accused had committed the murder. It is submitted that prosecution has failed to prove its case against the appellant-accused.
8. Learned counsel appearing for the appellant-accused submitted that the prosecution case that the appellant-accused and his relatives treated Sandha Rani with cruelty and tortured her to bring the remaining amount of ‘Jautaka’, i.e., 12,000/- which was not given in marriage his motive for committing the murder is an afterthought and it is only during trial Khudiram Mondal (P.W. 1), the father of the deceased for the first time introduced this story; whereas in the complaint lodged by him and the statement recorded under Sections 161 and 164 Cr. P.C, there is no reference to this that the appellant-accused demanded sum of Rs. 12,000/- as the balance amount of ‘Jautaka’. It is submitted that by introducing this case the prosecution wanted to falsely implicate the appellant-accused. It is further submitted that the alleged discovery of the ‘sanda’ (Mat. Exbt. 1 (id) ) has not been proved by the prosecution and further it can be seen from 4 the seizure list (Exbt. 25 ) that the police have subsequently added the article ‘sanda’. Further, it is submitted that after alleged discovery of ‘sanda’ it was not seized and sealed in the presence of witnesses, nor any label was affixed to it so as to identify the article or signatures of witnesses were obtained on the same.
9. It is, therefore, submitted that the prosecution having failed to prove their case beyond reasonable doubt the appellant deserves to be acquitted. It is submitted that the appellant has come up with the case that he was not present in the house when his wife came to be murdered and this fact has been established by examining the defence witnesses who have clearly stated that the appellant had accompanied them to a ‘Jatra’ in a nearby village and therefore, the appeal be allowed.
10. On the other hand, the learned counsel Mrs. R. Das appearing for the State submitted that the prosecution has established the case against the appellant/accused by leading circumstantial evidence of the fact that the deceased who was the wife was residing with the appellant/accused when she came to be murdered. Further the dead body of the deceased Sandhya Rani Bag was found lying in the room and the weapon of assault ‘sanda’ which was found to be stained with blood. The Medical Officer in his evidence has stated that the injury which was found on the deceased could be caused by the said weapon. It is further submitted that the appellant/accused had confessed before the villagers that he has committed the murder and also confirmed and the same when the police interrogated him in the presence of the villagers and has also pointed out the weapon of assault which came to be seized at the place of occurrence along with the other articles. The learned counsel for the State further submitted that the plea of alibi taken by the appellant/accused is an afterthought and his conduct in not reporting the matter to the police clearly goes to show his involvement in committing the offence.
11. Learned counsel also pointed out to the Court that the prosecution has established the motive on the part of the appellant/accused in committing the murder of his wife i.e. to extort dowry and that in the F.I.R. itself this fact has been mentioned that the victim was subject to torture at the hands of the appellant/accused and his relatives. Therefore, it cannot be said that there was no motive on the part of the appellant/accused to have committed the murder of his wife. No report 5 has lodged with the police that dacoity has taken place at the house of the accused and that the dacoits committed the murder of his wife. Therefore in all probability appellant/accused has committed the murder to the knowledge of the relatives who were residing in the house with the appellant/accused. Therefore, the appeal deserves to be dismissed.
12. The indisputed facts are that the appellant/accused was married to Sandhya Rani Bag, few months before she came to be murdered and in between the night of 21/11/1995 and 22/11/1995, wife (Sandhya Rani Bag) was found murdered in the house of the appellant/accused and that the dead body was found lying in the room where she used to reside with the appellant/accused.
13. On receiving the information, the police came to the village and visited the place of occurrence. S. P. Garai, Sub-Inspector of Police inquest report in the column Description of the corpse and in the position it was found. The dead body was identified by the father of the deceased and in presence of witnesses and many people of village Shyampur the inquest report was prepared. The deceased was found lying flat on the back side on a mat, her head was on north side and legs on south side, long black hair, body or white complexion, eyes, semi-closed, open-mouth, teeth are seen. Under the throat deep wound made by dealt a blow by means of a sharp weapon and deep wound below the jaw stroke with sharp weapon. Legs were found straight, fingers were semi-fisted, the hair were drenched by blood. The age of the deceased was approximately 19 years. On interrogation of the witnesses S.I. S. P. Garai came to now that Raghunath Bag, husband of the deceased of Vill. Shyampur murdered her with a blow of ‘sanda’ Thereafter the body was sent for post mortem examination. The post mortem examination was conducted by Dr. T. K. Pal (P.W. 3). On examination he found the following positive findings :-
“1. Incised wound front of neck muscle deep cutting (illegible) oesophagus and larynx.
2. Fracture 4th and 5th cervical vertebra.
3. Carotid artery torned incise wound 8” X 5”.
4. Incised wound over the left maxillary region 4” X 2”. Opinion of death. 6
The death in my opinion is due to haemorrhegic shock due to incised wound leading to injury of vessles.
Ante-mortem and homicidal in nature.”
14. The post mortem report is Ext. 6. The Medical Officer was shown the weapon ‘sanda’ (big size katari) and he has stated that if anybody hit by means of sharpened weapon even like ‘sanda’ this type of injury as mentioned in the post mortem report can be found. The Medical Officer was cross-examined on this point by the learned counsel for the accused persons and after referring to the measurements of the injury found on the body he has stated that if ‘sanda’ is used vertically the injury can be caused. He has specifically denied that ‘sanda’ cannot be used vertically. To sum up, in the opinion of the Medical Officer, the injury found on the victim could be caused by weapon like ‘sanda’ (material exhibit 1) Therefore we have no hesitation in coming to a conclusion that the victim was done to death by the help of ‘sanda’ (material exhibit 1).
15. Now let us examine whether the appellant/accused is the author of the injuries which resulted in homicidal death of the victim Sandhya Rani Bag. The fact that on the day of the incident the deceased Sandhya Rani Bag at the relevant point of time was residing with the appellant/accused is not disputed. She was found murdered and lying in the room where she was residing with her husband i.e. appellant/accused. The prosecution has examined several witnesses i.e. the co-villagers from the village where the appellant/accused was residing with other family members and so also Khudiram Mondal (father of the deceased Sandhya Rani Bag) and persons accompanying him from the village. Their evidence before the Court is in the nature of hearsay as none of them has seen the appellant/accused commit the murder but they have learnt that the deceased Sandhya Rani Bag was done to death by her husband Raghunath Bag i.e. the appellant/accused. The complainant Khudiram Mondal (P.W. 1), Bablu Bag (P.W. 2), Rama Bag (P.W. 4), Sisir Bag (P.W. 7), Phani Bhusan Patra (P.W. 8) and others have all deposed to the effect that Raghunath Bag has killed his wife and that he confessed before the villagers as well as the police. Bablu Bag (P.W. 2) has gone to the extent of deposing that someone stated dacoits have killed the deceased.
16. In so far as the alleged extra judicial confession is concerned that Raghunath Bag confessed before villagers in the presence of the police orally as well as in writing cannot be accepted as evidence against the appellant/accused for the simple reason that the same is directly hit by Section 25 of the Evidence Act. Section 25 totally excludes from evidence a confession made by an appellant/accused though not made to a police officer but even in his presence. It has come in the evidence of S.I. S. P. Garai the investigating officer who examined the witnesses and also seized a note in writing in which confession of appellant/accused Raghunath Bag was written in presence of villagers. Though the police officer does not admit that he was present, when the appellant/accused made extra judicial confession in presence of the villagers but all the other witnesses examined by the prosecution including P.W. 1 Khudiram Mondal (father of the deceased) has deposed to the effect that the appellant/accused not only confessed of having murdered Sandhya Rani Bag in the presence of villagers and police but also gave it in writing to the police. Therefore, this cannot be considered as evidence against the appellant/accused. But the fact remains that the appellant/accused was present at the village and pointed out to the police, the ‘sanda’ (material exhibit 1) which came to be seized from the place of occurrence i.e. the room where the dead body was found lying. The fact that at the relevant point of time the appellant/accused and the victim Sandhya Rani Bag were residing together and that she was found killed in the said room where they used to reside, has not been disputed by the appellant/accused. It was put to him under Section 313 Cr.P.C. that P.W. 11 Subhash Bag, one of the villagers has stated that the wife had been murdered in the room where appellant/accused was residing with her. The only explanation offered by the appellant/accused was that he was not in the house and had gone to enjoy ‘Jatra’ at village Angari. If this explanation is taken into consideration along with the defence of alibi raised by the appellant/accused, it is not impossible for the appellant/accused to have committed the murder of his wife as by midnight he has come back to his village as can be seen from the evidence of Khudiram Patra (D. W. 1), Ajoy Ghosh (D. W. 2). According to those witnesses they had gone to the nearby village Angari which is about 2 Km. away from their village Shyampur and when they were coming back after enjoying ‘Jatra’ while crossing the house of Raghunath Bag 8 (appellant/accused) they heard Raghunath Bag shouting, his wife has been murdered. Therefore considering the conduct of the appellant/accused and other relatives who were residing with him having found Sandhya Rani murdered at midnight, the appellant/accused or any of his family members do not choose to report to the police. It is only at 9 a.m. appellant/accused goes to the police station and till then Khudiram Mondal (father of the deceased) and others have already gathered at the place of occurrence. What we find from the evidence of P.W. 14 Mohasin Ali Khan who was the Upa-Pradhan of Jagannathpur Anchal, in the morning on 22/11/1995 Ramprasad Bag had come to his house and informed him that the wife of Raghunath Bag has been murdered.
17. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act, that facts which are inconsistent with the fact in issue are relevant. The burden is on accused to show that he was somewhere else other than the place of occurrence at the time of incident. On examining D.W. 1 and D.W. 2 what has been brought on record is that the appellant had gone to ‘Jatra’ with them to village Angaria which was just 2 Km. away. Therefore it cannot be said with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. In this case the evidence of defence witnesses does not make out a case of alibi at all on the contrary the presence of appellant/accused in the village is not disputed and none of the other inmates of the house have come forward with a plausible explanation. Further no report of dacoity at the house of appellant/accused by any person is made to police which completely falsify the defence that somebody else has committed the murder of Sandhya.
18. Therefore, in our view this conduct of the appellant/accused in not lodging any report as regards the incidence of murder of his wife in his house in between the night of 21/11/1995 and 22/11/1995 either by dacoits or any person and instead of giving any explanation of this incriminating circumstances offer a false plea of alibi establishes his guilt. Surprisingly, none of the family members also came up with any such explanation though they were present in the house and probably for the said reason were also tried along with the appellant/accused for having murdered Sandhya Rani in furtherance of their common intention.
19. The evidence of Khudiram Mondal P.W. 1 and Debabrata Mondal P.W. 12 goes to establish motive for committing murder of victim Sandhya Rani Bag who was tortured at the hands of the appellant/accused as an additional amount of Rs. 12,000/- was not paid to them as part of the dowry.
20. It is the contention of the learned counsel appearing for accused that the prosecution has failed to bring on record any motive on the part of appellant/accused for committing murder of his wife and the witnesses particularly the complainant for the first time stated that his daughter Sandhya was tortured for bringing Rs. 12,000/- as part of the dowry. It is not so, in the F.I.R. (Exbt. 1) it is specifically mentioned that he has learnt from his daughter of being tortured by appellant/accused and his relatives. Khudiram Mondal (P.W. 1) has in his evidence elaborated the facts to bring on record why his daughter was killed therefore absence of detailed particulars in the F.I.R. cannot be considered to be fatal for the prosecution. The F.I.R. came to be written at the place of occurrence and contains all important facts including the extra judicial confession.
21. In Udaipal Singh v. State of U. P. (AIR 1972 Supreme Court 54) the Supreme Court held :-
“Now, from the very nature of things apart from the inmates of the house there could be no eye witness of the occurrence of this case and the prosecution had, therefore, necessarily to rely on circumstantial evidence only. In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation -if any- of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence.”
22. We, therefore, find that the prosecution has established the appellant/accused had the motive to commit murder of Sandhya Rani Bag i.e., for failure on the part of the parents to fulfill their demands. It is the appellant alone who had the opportunity to commit the crime which is 10 evident from the established circumstances. The victim being found murdered in the room where she was residing with the appellant/accused passed after midnight, for which false explanation has been offered by the appellant/accused of alibi and his ignorance. Therefore, we do not find any merit in the appeal. The appeal is dismissed.