| SooperKanoon Citation | sooperkanoon.com/950504 |
| Court | Kolkata High Court |
| Decided On | Apr-04-2012 |
| Case Number | C.R.A. No. 249 of 2000 |
| Judge | ASHIM KUMAR ROY & ASIM KUMAR RAY |
| Appellant | Ashok Banerjee @ Bapi Bose |
| Respondent | The State of West Bengal |
Asim Kumar Ray, J.
1. This criminal appeal is directed against the judgment and order dated 9-6-2000 and 12-6-2000 passed in Sessions Trial No. XXIX/July/1997 by learned Additional Sessions Judge, 5th Court, Midnapore thereby convicting Ashok Banerjee @ Bapi Bose of the charge under Section 302 of the Indian Penal Code and sentencing him to suffer R.I. for life and also to pay a fine of Rs. 3,000/- in default to suffer imprisonment for six months more.
2. The factual background in a nutshell is that, on 20-1-1997 around 11 a.m. appellant being accompanied by a lady arrived at a lodge named Ma Janhabi Bhawan Hotel at Digha. He wanted an accommodation there for two days disclosing themselves as husband and wife. The owner of the hotel, FIR maker Balai Das /P.W.1 accordingly allotted room No. 5 to them at a charge of Rs. 120/- per day. They caused recording of their names and addresses in the hotel register as Bapi Bose and Rani Bose of Birati. They stayed in the said hotel in room No. 5 for two days. On 22-1-1997 around 7.30 a.m. Bapi Bose was found leaving the hotel with a bag in his hand in a suspicious manner. Balai Das asked him about his wife /Rani to which he in an unprepared manner stated that she was lying in her bed in room No. 5 in drunken condition. He was then asked as to why he was leaving the hotel alone keeping his wife in such a condition to which he finding no alternative confessed before the FIR maker /Balai Das and others who were present there that at the previous night of 22-1-1997 he administered poison to his wife Rani mixing the same with liquor. He stated before them also that he gave electric shock to his wife and has murdered her. He thereafter disclosed that his actual name is Ashok Banerjee , son of Amiya Kumar Banerjee of Ananda Park, P.S. Birati, 24-Parganas (North) and his wife’s actual name is Soma Banerjee, daughter of Sukhjiban Banerjee of Mahajyoti Indira Nagar , P.S. Airport, 24-Pargranas (North ). He has further disclosed that they got married before 5 years and their such marriage was registered under the Registration Act but owing to some family reasons no social marriage ceremony could be performed . He killed his wife due to various reasons including strong suspicion about her character. Appellant, immediately thereafter took the de facto complainant to room No. 5 of the hotel, opened the padlock of the door and showed his wife lying in bed in unconscious condition. Soma @ Rani was shifted to hospital by the FIR maker and others with the help of the appellant where she was declared dead. In the aforesaid premises Balai Das reported the matter to the local police station and in pursuance of such report /FIR , Digha police station case No. 1 of 97 dated 22-1-1997 under Section 302 against appellant Ashok Banerjee @ Bapi Bose was registered.
3. In course of trial 14 witnesses were produced and examined from the side of the prosecution. During trial FIR, inquest report of the dead body of Soma Chatterjee, seizure list, report of doctors, post mortem report of the deceased. Seizure list , sketch map , marriage certificate of appellant and victim, copy of FSL report and copies of photographs of deceased have been marked as Exhibits. Beside it, forwarding report of Investigating Officer and G.D.entry No. 488 dated 22-1-1997 have been marked as Exhibits too from the side of the defence.
4. The case of the defence as it transpires from the trend of cross-examination of P.Ws and statement of the accused comes out during his examination under Section 313 of Cr. P.C. was of complete innocence and false implications.
5. Mr. Moahn Kumar Sanyal , learned Counsel appearing on behalf of the appellant has emphatically contended that the constable has not identified the dead body before the doctor who conducted post mortem examination. There is no evidence regarding such identification at the instance of constable. He has contended too that the carbon copy of the post mortem report of the deceased cannot be taken into considerations in view of the provisions laid down in Section 60 of the Evidence Act. The FSL report on which prosecution has banked upon was collected after filing of the charge sheet and the same cannot be taken into consideration for proper adjudication of the case. It has been manufactured in order to fill in the lacunae of the prosecution case. He has vehemently urged further that opinion of the two doctors are contradictory to each other and as such there is no conclusive proof regarding the death of Soma Chatterjee .
6. Mr. Souvik Mitter, learned counsel appearing on behalf of the opposite State has refuted the contentions of Mr. Sanyal and has contended that constable Kedar Nath Gorai identified the dead body before the Autopsy Surgeon and the Autopsy Surgeon stated so in has evidence. The appellant and the victim gave their false name in the register of the hotel. They were together in room No. 5 till the date of incident i.e. 22-1-1997. They were seen together in the said hotel till the offence is committed.
7. Before adverting to the rival contention of the parties, it would be apposite to evaluate the evidence on record specially when the case in hand is entirely rests on circumstantial evidence.
8. The FIR maker Balai Das /P.W.1 has deposed that they have a hotel at Digha named Ma Janhabi Bhawan Hotel. He has stated in his evidence that on 20-1-1997 in the afternoon one male along with a female arrived at their hotel and the male person disclosed their identity as Bapi Bose and Rani Bose. They wanted a room. Room No. 5 was allotted in their favour. Bapi and Rani recorded their names in the hotel register. On 22-1-1997 around 8/8.30 a.m. Bapi was trying to leave the hotel with a bag in his hand and at that time he was asked as to why he was leaving the hotel alone to which he replied that that his wife was in the room of the hotel after taking liquor. She became unconscious which is why he was leaving alone. He was asked to hand over the room saying “Ghar Bhujiya Din’. Balai along with Bimal, Kanai and Bapi had been to room No. 5 and then he asked Bapi to open the door of that room. After opening the door of the room they found that Rani Bose lying on the bed. On being asked Bapi told them that he administered poison to his wife mixing with liquor and put electric shock to his wife in the previous night. They removed Rani Bose to hospital. Bapi accompanied them. The doctor of the hospital examined Rani and declared her ‘dead’. They informed the police about the incident.
It is evident further that as per his instruction one Bhavasindhu Jana wrote the written complaint/FIR on which he put his signature . Police officer arrived at the hospital at Digha and conducted inquest over the dead body of Rani Bose in their presence . He put signature on the inquest report. Police officer came to their hotel too and conducted investigation. One electric wire, one tester, one knife, one green sari, one blue sari, one sal, one napkin etc. were seized from room No. 5. The seizure lists were prepared in their presence. He put signature on the seizure lists. He has stated further that Bapi Bose has another name as Ashok Banerjee. He found Rani Bose alive even at night at 10/10.30 p.m. on 21-1-1997 when they entered into room No. 5 after taking meal.
9. Shri Ananta Kumr Chain/P.W.2 is the ward master of Digha State General Hospital who has testified in his evidence that on 22-1-97 he was posted in the said hospital and in the same capacity. He identified the dead body of Rani Bose/ dead body of a female to the police officer who conducted inquest over the said dead body.
10. Shri Dipankar Chatterjee/P.W.3 is the brother of victim Rani Bose @ Soma Chatterjee who has stated in his evidence that the marriage of Soma and Ashok Banerjee was registered in the year 1992 but their marriage was not solemnized and the registration certificate of their marriage was handed over to the police officer by him. Ashok is a resident of Ananda Park near Birati High School. On 19-1-97 Soma visited her/their maternal uncle’s place at Metiabruz. She informed the wife of Dipankar over phone that she will come back on 28-1-97 but did not return on that date. One B. Mukherjee, police officer of Digha Police Station informed him over phone that his sister Soma has been murdered in Ma Janhabi Hotel and they caught the murderer . He requested him to attend the police station to identify the murderer. He along with his father Sukhjiban and friend Asit Das went to Digha on 22-1-1997 at night to identify the murderer. They reached at Digha around mid night. They visited Digha police station in the early morning on 23-1-97. They were interrogated by police officer. Thereafter they went to Contai morgue and took the dead body of his sister Soma. He identified the photograph of Soma , sari, sal, blouse and her one pair of chappal produced in Court (Mat. Ext. I).
He has also stated that he came to know from two sons of hotel owner and his son –in-law that Ashok and Soma were allotted room No. 5 of their hotel on 21-1-97. They stayed there even on 21-1-97. They entered the room around 10.30 p.m. at night on 21-1-97. Ashok was trying to leave the hotel in the morning of 22-1-97. On a query they came to know that Ashok has murdered Soma by administering poison and giving electric shock. The dead body of Soma was sent to hospital by them.
11. Shri Sukhjiban Chatterjee/P.W.4 , the father of victim has stated in his evidence that Soma was his youngest daughter. The marriage of Soma and Ashok Banerjee was registered. He came to know that Ashok has committed murder of Soma in Ma Janhabi hotel at Digha by administering poison mixing with liquor, giving her electric shock and by throttling.
12. Dr. Girish Dutta/P.W.5 has testified in his evidence that on 22-1-97 he was posted at Digha State General Hospital as Medical Officer. On that day around 8 a.m. in the morning a dead body of a female was brought by Badal Pradhan , son of Padmalochan of village Khadangobra and others by a rickshaw. On query they stated to him that that the dead body was of Rani Bose, wife of Bapi Bose of Mograhat, 24-Parganas (North). They also disclosed to him that the deceased was also known as Soma Banerjee, wife of Ashok Banerjee of Birati, 24-Parganas (North). He examined the dead body and found her face and conjunctiva congested. Throat oedematour with erythematous. Semi lunar mark approximately ” X5” on throat. Face and conjunctiva suggests that the death was due to suffocation. If a sari placed on her neck and pressed the same from back side similar mark of injury i.e. semi lunar mark may form. Even if the sari is pressed on the neck and pressed from the front side similar mark may be formed. He informed the police officer about the death of Rani Bose @ Soma Chatterjee. The report made by him to the police has been marked as Ext. 6.
13. Shri Bhabasindhu Jana /P.W.6, an employee of Digha Hoteliers’ Association has stated in his evidence that on the request of Balai Das/P.W.1 he wrote the written complaint as per his instruction . He has also stated that Balai Das has stated to him that Bapi Bose has committed murder of his wife in their hotel. Subsequently, they came to know that Bapi Bose is not his actual name . His name is Ashok Banerjee. He identified Ashok Banerjee on dock. He read over and explained the contents to Bapi Bose who put his signature on it. The written complaint has been marked as Ext. 1/1. He put his signature on the written complaint also which has been marked as Ext. .
14. Shri Badal Pradhan/P.W.7 is a trolley van puller of Digha who has stated in his evidence that he knew the owner of Ma Janhabi Hotel and his sons. On 22-1-97 the son of the owner of the said hotel called him to their hotel . He took his trolley van to the hotel. 4/5 persons brought a unconscious lady from room No. 5 and put her on his trolley van. He took that unconscious lady to Digha Hospital. On examination the Medical Officer of Digha Hospital pronounced the death of that unconscious lady. He has also stated that Kanai, Balai Das and others reported to them that one Bapi Bose has committed murder of his wife by poison mixing the same with liquor. He has identified the photo of the unconscious lady in course of his evidence.
15. Shri Bimal Kumar Maity , son-in-law of hotel owner as well as an employee has stated in his evidence that on 20-1-1997 Bapi Bose and Rani Bose came to their hotel in the afternoon. They took the room No. 5 of their hotel. On 22-1-97 around 7.30/8 a.m. in the morning Bapi was trying to leave the hotel with a plastic bag. He along with Balai Das were present at the gate. They asked Bapi about his wife and also asked him as to why he was trying to leave the hotel alone. He told them that his wife in the room. On interrogation Bapi disclosed before them that he administered poison to his wife with liquor and also caused her death by giving electric shock. Thereafter he opened the door of room No. 5 and they found Rani Bose was lying on the bed of room No. 5. They called the rickshaw van puller Badal Pradhan. Badal Pradhan brought his rickshaw van to their hotel. They sent Rani Bose, the wife of Bapi to Digha Hospital. On examination the Medical Officer of Digha Hospital declared Rani Bose ‘dead.’ He has also stated that he was staying in the hotel. Police officer conducted inquest over the dead body of Rani Bose in their presence. Inquest report was prepared by the police officer wherein he put his signature. The police officer seized register of their hotel and four torn pieces of a green colour sari, one tester, one holder , one electric wire, one knife and empty wine bottle from room No. 5. Seizure lists were prepared and he put his signature on it. He has identified the photograph of victim Soma Banerjee.
16. Dr. B.K.Nanda /P.W.9 has stated in his evidence that on 22-1-97 he was the Superintendent of Contai Sub-divisional Hospital and on that day he conducted post mortem over dead body of Soma Banerjee @ Rani Bose aged about 26 years Hindu female in connection with Digha Police Station UD Case No. 4 of 1997 dated 22-1- 97. The dead body was identified by Constable –1671 Kedar Nath Gorai. On examination he found one black roundish ’’X ” (torn) on the left sole of the foot due to electric shock. Two swelling areas haematoma on the volt of the head and 1 ” X ”. each. Lungs –congested. Membrane-congested. Stomach-some pungent smell fluid about 6 oz.(may be the wine like smell). He has opined that death was due to shock and hemorrhage and cardio respiratory failure as a result of violent beating and chemical poison in the stomach respectively which were ante mortem and homicidal in nature. He has also stated that he preserved the viscera . He gave his opinion saying that each of the injury may result in death. Death may be caused by cumulative effect of those injuries and poison. The injury on the volt of the head may be caused by blunt substance.
17. Shri Gobinda Prasad Kumbhakar/P.W.10 is an A.S.I. of police who has stated in his evidence that on 22-1-97 he was attached with Digha police station and around 11.05 a.m. He was the duty officer of the said police station in the absence of the then Sub-inspector , Rathindra Nath Bakshi. The written complaint sent by Shri Bakshi to him through homeguard Netai Patra . He has registered Digha police station case No. 1 of 1997 dated 22-1-97 and made an endorsement on the written complaint showing the receipt of the same. He has filled in the formal FIR. Shri Bakshi took up the investigation of the case.
18. Shri Kedar Nath Gorai/P.W.11 who has stated in his evidence that he is a police constable bearing No. C-1671. On 23-1-97 he was posted at Digha Police Station and on receipt of some wearing apparels etc. from the hospital authority he handed over the same to Officer-in-charge, Digha Police Station . Officer –in-charge of Digha Police Station prepared a seizure list in his presence in respect of those articles on which he put his signature.
19. Shri Manoj Kumar Sanyal/P.W.12, a resident of Dum Dum Airport quarter has stated in his evidence that he knows Sukhjiban Chatterjee, father of Some Chatterjee . He identified Ashok Banerjee, accused and has stated that Ashok Banerjee went to Digha with Soma Chatterjee in the later part of January 1997. On hearing the information about the unnatural death of Soma he accompanied Sukhjiban Chatterjee , father of Soma and Bablu, brother of Soma went to Digha. He heard from the local people of Digha that Ashok committed murder of Soma by administering poison and by giving electric shock. He has also stated that 3 / 4 days prior to the incident Ashok came to his house . His wife offered tea to him (Ashok). On request of Ashok he handed over the electric wire to him . He/P.W.12 used the said wire for catching F.M. channel of his two-in-one tape recorder. The electric wire was of red and yellow colour and it was 7/8 cubits. He has identified the electric wires (Mat.Ext.) which were handed over to Ashok. He has also stated that Ashok and Soma had love affairs and their marriage was registered.
20. Rathindra Nath Bakshi/P.W. 13, Sub-Inspector of police has stated in his evidence that on 22-1-97, he was Officer-in-charge of Digha Police Station and on that date at about 9.25 a.m. he received an information over telephone that one person has been murdered in Ma Janhabi Bhawan Hotel. He left the police station with force after handing over the charge of the police station to ASI Gobinda Prasad Kumbhakar. He reached at Ma Janhabi Bhawan Hotel and on query got information that Bapi Bose committed murder of Rani Bose at that hotel and the body of Rani Bose has been shifted to Digha State General Hospital. Balai Chandra Das , the owner of Janhabi Hotel reported to him that Rani Bose was murdered by Bapi Bose. The actual name of Rani Bose is Soma Chatterjee and the actual name of Bapi Bose is Ashok Banerjee. He rushed to State General Hospital from Ma Janhabi Hotel and met Medical Officer of the hospital. The Medical Officer reported to him that Soma Chatterjee @ Rani Bose was brought to the hospital. He received a written complaint from Balai Das at hospital premises and sent the same to the police station through homeguard Netai Patra and Balai Das accompanied him. He took up investigation of the case subsequently. He arrested accused Bapi Bose from hospital premises who was detained by local people. He conducted inquest over the dead body of Rani Bose @ Soma Chatterjee in the presence of witnesses and prepared inquest report. After conducting inquest he sent the dead body of Soma to the morgue of Contai Sub-divisional Hospital for post mortem through Constable C- 1671 Kedar Nath Gorai.
21. He recorded the statement of accused. Accused lead him to room No. 5 of Ma Janhabi Bhawan Hotel and brought out a bag from underneath the cot in presence of witnesses . One red yellow colour coil, one tester , one knife, one lungi, one pair of lady’s chappal ,one wine bottle etc. were found inside that bag and the same were seized . A copy of the seizure list was handed over to the accused and he put his signature on the seizure list. He has also seized the register of hotel. He prepared sketch map of the place of occurrence . Constable –1671 , Kedar Nath Gorai produced the wearing apparel and some ornaments of the deceased . He seized those wearing apparels and ornaments under the seizure list. He examined other witnesses. He directed the father of the deceased and her relatives to go to Contai Hospital for identification of the dead body. He had been to Contai Sub- Divisional Hospital and met with father and relatives of the deceased at Contai morgue who identify the dead body.
22. On 27-1-1997 Dipankar Chatterjee , brother of Soma produced one marriage certificate showing registration of marriage between Some Chatterjee and Ashok Banerjee. Photo copy of the said marriage registration certificate was also produced. He perused the certificates and seized the photo copy of the marriage certificate under seizure list. (marriage certificate –Ext.II) . He collected the post mortem report on 28-1-97. He examined Tapan Kumar Roy, photographer of New Life Studio at Contai and collected the negative and positive print of the dead body of the deceased.
23. The Medical Officer of Contai Hospital preserved the viscera and handed over the same to him. He sent the viscera through learned Sub-divisional Judicial Magistrate to Forensic Science Laboratory for chemical report through Constable-159 Arun Kumar Dey. He received the copy of the FSL report (Ext. 12) and on completion of the investigation he submitted charge sheet against Bapi Bose @ Ashok Banerjee.
24. Shri Tapan Kumar Roy/P.W.14 is a photographer of New Studio Life of Contai. The dead body was identified to him by a police constable of Digha police station. Photos together with negatives and positives are marked as Ext. 13 series.
25. It is not disputed that the alleged incident of murder was not witnessed by anyone. Therefore, in the absence of any eye witness the entire case of the prosecution based on circumstantial evidence. It is well settled principles that in such type of cases the evidence on record and the materials thereto should connect the accused with the crime and it should point to the conclusion that it was the accused and the accused only who was the perpetrator of the crime and the evidence adduced was in compatible with his innocence. Therefore, the only reasonable inference from the proved fact should be that the accused committed the murder. In such circumstances, conviction can only be based on such circumstantial evidence.
26. The evidence on record disclosed that appellant/accused Bapi Bose @ Ashok Banerjee being accompanied with Rani Bose @ Soma Chatterjee arrived at Ma Janhabi Bhawan Hotel at Digha on 20-1-97. They sought for an accommodation in that hotel disclosing themselves as husband and wife. Accordingly Room No. 5 of the said hotel was allotted to them. They recorded their names and signed on the hotel register. These pieces of evidence on record remained unshaken though there is substantive cross-examination from the side of the defence. The evidence of FIR maker /P.W.1 and Bimal Kumar Maity /P.W.8 are corroborating on this point. There is no reason to impeach the credit of their testimony. The fact so established with the help of their evidence that appellant/ accused in the company of his wife was accommodated in room No. 5 of Ma Janhabi Bhawan Hotel at Digha on 20-1-97.
27. The accused has stated in his examination under Section 313 of Cr. P.C. that he is a resident of Birati (Nimta) , 24-Parganas (North). The Ext. 11 shows that the registration of marriage of Ashok Kumar Banerjee and Soma Chatterjee was done on 29-6-92. Mr. B.R.Das, Marriage Officer, Government of West Bengal , Calcutta , 24-Parganas (North) issued the certificate of marriage. Shri Dipankar Chatterjee /P.W.3 and Shri Sukhjibon Chatterjee/P.W. 4 elder brother and father of the victim Soma Chatterjee respectively have stated in their evidence that the marriage of Soma and Ashok were registered. It has been categorically stated by Dipankar that the registration of marriage was done in the year 1992. The oral evidence of aforenamed witnesses is corroborating with the year of registration of marriage of accused Ashok Banerjee and victim Soma Chatterjee. There is no evidence on record by the help of which the afore-noted evidence regarding registration of marriage of accused and victim may be brushed aside. On the contrary, the evidence of Dipankar and his father as well as the marriage certificate issued by marriage registration officer B.R.Das inspire confidence. It is , therefore, beyond dispute that Ashok Banerjee @ Bapi Bose and Soma Chatterjee @ Rani Bose were husband and wife and they got room No. 5 of Ma Janhabi Bhawan Hotel at Digha on 20-1-97 disclosing themselves as such. They checked in to the hotel on that date and stayed there as boarder of room No. 5.
28. Prosecution witness Balai Das /P.W.1 has stated categorically in his evidence that he found Rani Bose alive even at night at about 10/10.30 p.m. of 21-1-97. At about 10/10.30 p.m. at night of 21-1-97 Bapi Bose and Rani Bose entered into room No. 5 after taking meal. Bimal Kumar Maity/P.W.8 has stated alike prosecution witness Balai Das saying that he found Rani Bose alive in the night of 21-1-97 at 10 p.m. The evidence of FIR maker is corroborated by the evidence of another witness who used to stay in the hotel as employee who is also the son-in15 law of the hotel owner. Therefore, we find clear and unambiguous evidence to justify the factum that Rani Bose was alive in the company of her husband Ashok Banerjee @ Bapi Bose around 10 p.m. in the night of 21-1-97.
29. The evidence on record specially the evidence of P.W.1 and P.W.8 reflects that on 22-1-97 at about 8/8.30 a.m. Bapi Bose was trying to leave the hotel and at that time he has asked as to why he was leaving alone keeping his wife there in room No. 5. On query the accused stated before them that his wife is in the room in unconscious state after taking the liquor. Thereafter it was confessed by Bapi before them that he administered poison to her mixing the same with liquor and also subjected her with electric shock. There is positive evidence that Bapi was detained by afore-noted witnesses. He was taken to the room No. 5 of the hotel. The room was opened and it was found that Soma Chatterjee @ Rani Bose was lying on the bed. She was unconscious. The evidence on record speaks that Soma Chatterjee @ Rani Bose in unconscious state was brought out from room No. 5 and taken to Digha State General Hospital on 22.1.97 at about 8 a.m. by the rickshaw van of P.W.7. There is evidence on record too that accused accompanied his unconscious wife along with others to the State General Hospital. The medical Officer of the State General Hospital /P.W. examined her, declared her dead and made a query about the dead body. It was disclosed to him that the dead body was of Soma Chatterjee, wife of Ashok Banerjee of Birati , 24-Parganas (north).
30. Doctor informed the police about the death of Rani Bose @ Soma Chatterjee. The information /report given by doctor is Ext. 6 which is matching with the evidence of the record of doctor and rickshaw puller . The name of the rickshaw puller Badal Pradhan , the name of the victim Rani Bose as well as Soma Chatterjee and the finding of the doctors are reflecting from the report. The evidence shows that Soma Chatterjee @ Rani Bose was alive in the company of Ashok Banerje in the previous night i.e. 21-1-1997 around 10/10.30 p.m. and his dead body was taken out from the room No. 5 with the assistance of the accused. Therefore, accused is the best person to give light as to the cause of death of his wife.
31. Prosecution witnesses have stated that accused made statement before them that he administered poison in the liquor of his wife and gave electric shock to her resulting in her death. P.W. 9/Autopsy Surgeon has stated in his evidence that he found one black roundish swelling ”X5” (torn) with left sole of the feet of the victim. He has opined that it was due to electric shock. He further opined that the death of the victim was due to shock, haemorrage and cardio respiratory failure as a result of violent beating and chemical poison in the stomach which was ante mortem and homicidal in nature. He has stated he has preserved viscera.
32. The I.O. in course of his evidence has stated that he sent the viscera of the victim to FSL for examination. He collected the report from the FSL regarding the examination of the viscera of the victim. The viscera report has been marked as Ext. 12. The report shows that the glass jar containing portion of the viscera said to be a sample with it contents portion of liver, kidney and uterus with appendix of Soma Chatterjee @ Rani Bose . The result of examination “Phospha midon” has been detected in the viscera said to be of Soma Chatterjee @ Rani Bose. The report was signed by doctor D. Sengupta, Assistant Director, Toxicology ,Forensic Science Laboratory, Government of West Bengal, Kolkata on 15-9-97. The post mortem report has been marked as Ext. 7. If we read the fact which was claimed to have been disclosed by the accused before the FIR maker and other witnesses together with the evidence of doctors, the post mortem report and the FSL report then we find a clear case of homicidal death of victim by poisoning and the murderer made the death of victim ‘a certainty’ put electric shock.
33. We may now peruse Section 106 of the Indian Evidence Act to show its applicability in the present case.
“Sect. 106- Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
34. Now while examining the aforesaid provisions, we may keep in mind the principles laid down by the Hon’ble Apex Court in State of Uttar Pradesh vs. Krishnagopal reported in 1989 Cr L J 218.
It is a cardinal principle of criminal law that the burden lies on the prosecution to establish its case against the accused beyond all reasonable doubts and the prosecution cannot get advantage from the accused’s failure to establish his case. A person has, no doubt, “a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though the standard is a higher standard. However, there is no absolute standard. What degree of probability amounts to ‘proof is an exercise particular to each case’. Therefore, positive facts must always be proved by the prosecution . But the same rule cannot be applied to negative facts as regards which the rule about the burden of proof will be governed by Section 106 of the Indian Evidence Act provided of course other conditions for application are satisfied.
35. In the present case, the appellant having been seen last with the deceased the burden was upon him to prove what happened thereafter since those facts were within his special knowledge. If the appellant fails to do so , it is to be held that he failed to discharge the burden cast upon him by Section 106 of the Indian Evidence Act vide AIR 2007 SC 144 (State of Rajasthan v. Kashi Ram).
36. In this premises, it would be just appropriate and relevant to reproduce the observations of the Hon’ble Apex Court from an oft-quoted decision Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404:
“(11). This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intend to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge…..”
It is , therefore, settled position of law that the burden of proof is on the prosecution and it never shifts and the use of Section 106 of the Evidence Act is to be restricted to ‘a very exceptional class of cases’
37. Reference in this connection may be made to the decision of the Hon’ble Supreme Court in Trimukh Maruti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681 wherein the Court observed :-
“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence as noticed above is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties….. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading having regard to the acts and circumstances of the case….”
“15. Where an offence like murder is committed in secrecy inside a house , the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be held by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quit and offering no explanation on the supposed premises that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
38. In view of such consistent opinion of the Hon’ble Apex Court we have dissected the evidence on record and the circumstances emerging out from it with utmost circumspection. We find that the evidence on record irresistibly proceed towards the accused/appellant in proving the fact of his guilt regarding the murder of his helpless wife who was in his company in a sea shore hotel at Digha. Therefore, by invoking Section 106 of the Indian Evidence Act we find reasons and ample reasons to hold that the appellant owes an explanation on the strength of his special knowledge and such explanation might lead the Court to draw an appropriate inference.
39. In State of Rajasthan vs. Jaggu Ram reported in 2008 Cr L J 1039 the Apex Court had the occasion to deal with the same question wherein similar principles have been reiterated.
40. We are now to see as to whether the accused has discharged his said obligation during his examination under Section 313 of Cr. P.C. The accused failed to explain the circumstances leading to the death of his wife. It is worth mentioning that in response to question No. 6 put to him during his examination under Section 313 Cr. P.C. the accused answered stating that “he cannot say what happened, but is false”. The relevant questions put to the accused by the learned Trial Judge and his answer thereto is reproduced accordingly as under :
“Question No. 6. It is further evident from the evidence of P.W.1 that after opening the room No. 5 your wife was sent to the hospital in unconscious condition along with four pieces of a sari which she wore. And the doctor of the hospital declared that Rani Bose died after examination. And thereafter the police was informed. What is your say about this ?
Answer No. 6 “ I cannot say what happened, but is false.”
41. In this connection reliance can be placed upon a decision of the Hon’ble Supreme Court in Ganeshlal –vs.-State of Maharashtra reported in (1992 ) 3 SCC 106 , wherein it has held that “ circumstances clearly establishing homicidal death having occurred while the deceased was in the custody of the appellant and his family members, the appellant was obliged to give a plausible explanation for the cause of the death of his wife in his statement under Section 313, Cr. P.C. In the instant case, it is needless to mention that even though the appellant admitted in his examination under Section 313 Cr. P.C. that he along with his deceased wife stayed together in the rented premises at the fateful night, he refused to explain the circumstances leading to his wife’s homicidal death. As a matter of act, instead of offering a plausible explanation for the cause of such homicidal death of his wife he has sought to prevaricate the relevant question by furnishing a reply evasively to the same. We have, therefore, no hesitation to opine that the accused failed to discharge his obligation during examination under Section 313 Cr. P.C. , even though it is established that the victim wife was in his custody when such homicidal death occurred.”
42. In the aforesaid factual circumstantial background we have meticulously dissected the entire tangible evidence and cogent circumstances on record in its proper perspective and in our considered opinion the following circumstances form a chain of circumstances which can safely be relied upon:
a. The appellant Bapi Bose @ Ashok Banerjee arrived at hotel Ma Janhabi Bhawan at Digha on 20-1-97 with victim Soma Chatterjee @ Rani Bose.
b. They were allotted room No. 5 of that hotel towards their accommodlation.
c. They checked in the hotel room i.e room No. 5 making endorsement in the register of the hotel.
d. The appellant and his wife were seen alive on 21-1-97 around 10/10.30 p.m. The hotel gate remained close after 10 p.m.
e. The appellant was seen leaving the hotel taking a plastic bag on 22-1-97 around 8/8.30 a.m. alone leaving his wife in room No. 5.
f. He was detained and taken to room No. 5.
g. His wife was lying in unconscious state on bed of room No. 5. She was taken to State General Hospital by the appellant and others.
h. Doctor found that the victim was dead.
i. Police was informed by doctor. Police arrived at the hospital and on receipt of specific complaint the case was started against the appellant.
j. The appellant was arrested from the hospital. Seizure was made.
k. Appellant’s utter failure to discharge the burden caused upon him under Section 106 of the Indian Evidence Act.
l. Further failure to discharge his obligation during examination under Section 313 Cr. P.C. by offering a plausible explanation for the cause of death of his wife who was in his company.
43. As indicated earlier it is clearly established from evidence on record and the circumstances thereto that the victim/ wife was in the company of her husband/appellant at the material point of time. In such a facts situation the appellant was under obligation to explain the circumstances leading to his wife’s homicidal death during his examination under Section 313 Cr. P.C. It can therefore be safely concluded on a close scrutiny of the materials on record including examination sheets under Section 313 Cr. P.C. that the appellant did not care to offer any explanation whatsoever as to why his wife died even though both of them stayed together at the fateful night in a sea shore hotel at Digha which was allotted to them for their stay.
44. The appellant is an accused of committing murder of his wife. The fact that the appellant and the deceased were last seen alive in the company of each other at the night of incident around 10 p.m. The appellant’s failure to explain the proximate cause of homicidal death of his wife is considered as a circumstances of incriminating nature which is undoubtedly a circumstances providing additional link to the chain of circumstances already enumerated in preceding paragraphs. He has also failed to discharge the burden caused upon him under Section 106 of the Indian Evidence Act even through the prosecution has discharged its initial burden of proving the case by adducing cogent , consistent and convincing evidence.
45. So after making critical analysis of evidence and circumstances on record we are to express that since there was none else in the room wherein the accused and his wife stayed , since the accused knew about the death of his wife, since accused knew the fact that his wife was lying unconscious in the said room, since he was trying to leave the hotel alone and since the accused has failed to explain the cause of death of his wife , he cannot escape from the liability of the proximate cause of death of his wife. It has come out that the death of the victim Some Chatterjee @ Rani Bose , wife of accused occurred by poisoning, suffocation and as a result of electric shock administered to her which was ante mortem and homicidal in nature. The circumstances of the case discussed in the foregoing paragraphs leads to the only conclusion that the accused but none else is the perpetrator of the crime i.e. death of his wife.
46. We have assiduously taken the totality of the various incriminating circumstances together with its cumulative effect into consideration as we are judging the guilt or innocence of the appellant in this case which is based on circumstantial evidence. Significantly enough , there is nothing on record even in the form of defence suggesting that there was any access to a stranger during the short stay of the appellant with his wife in the hotel room at Digha. On the contrary, it has been established on record that the appellant Bapi Bose @ Ashok Banerjee was in the room and his wife was in his company and care at the night of 21-1-1997. It is evident that he took the unconscious body of his wife to hospital and the doctor examined the body, declared her death and reported the said thing to the concerned police station of Digha. The post mortem report/Ext.7 envisages that the cause of death was ante mortem and homicidal in nature. The report of FSL reflects that “Phospho midin”, a poison found in the viscera of the victim, as already indicated earlier, no explanation is forth coming as to how the victim was met with a homicidal death while she was in the company and care of the appellant.
47. Taking all these facts and circumstances together into account we find no hesitation but to opine that the same are consistent only with the hypothesis of the guilt of the appellant. We, therefore, concur with the finding of the learned Trial Court that the appellant has committed the murder. The charge under Section 302 of IPC against him stood proved beyond the shadow of doubt.
48. Viewed in light of the afore-stated facts and banking on the foregoing decision we are fully convinced to hold that the chain of circumstances leading to the conclusion of guilt are conclusive in nature and have fully been proved by substantive evidence. Further the facts so established are inconsistent with innocence of the appellant and it excludes the possibility of guilt of any person other than the appellant. The order of conviction and sentence impugned is affirmed.
49. In the result the appeal stands dismissed.
I agree
(Ashim Kumar Roy, J.)