Mihir Mondal & Anr vs State Of West Bengal
2023 Latest Caselaw 5506 Cal

Item No. 56 & 57




                   IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                   And
The Hon'ble Justice Gaurang Kanth

                                      C.R.A. 734 of 2014

                                      Mihir Mondal & Anr.
                                               Vs.
                                      State of West Bengal


For the Appellant no. 1:                Ms. Afreen Begum, Advocate


For the Appellant no. 2:                Mr. Amit Ranjan Pati, Advocate


For the State                   :       Mr. Partha Pratim Das, Advocate,
                                        Mr. Shiladitya Banerjee, Advocate.


Heard on                        :       16.8.2023 and 24.8.2023.


Judgment on                     :       24.8.2023.


Joymalya Bagchi, J. :-

1.

Appellants have assailed the judgment and order dated

29.11.2014 (Impugned Judgment) passed by the learned Additional

Sessions Judge (Redesignated) Court, Bankura in sessions trial case no.

01(5)2023 arising out of Sessions Case No.37(09)2012 convicting the

appellants for the commission of the offences punishable under Sections

302/201/34 of the Indian Penal Code and sentencing them to suffer

imprisonment for life for the offence punishable under Sections 302/34

IPC and to suffer imprisonment for five years and to pay a fine of Rs.

5,000/- each, in default, to suffer rigorous imprisonment for six months

more for the offence punishable under Sections 201/34 IPC. Both the

sentences shall run concurrently.

Prosecution case:-

2. Prosecution case, as alleged against the appellants is to the effect

that on 22.03.211 at around 5:30 a.m. Khokan Mondal, PW 2, the uncle

of the deceased Prasanta, heard cries of the wife of the deceased i.e.

Pratima Mondal, appellant no. 2 herein and woke up. Rushing to the

house of Prasanta he found his dead body lying in front of the house

beside a stack of bricks. At 8.45 hrs he lodged a written complaint at

Mejia P.S resulting in registration of Mejia P.S case no. 23 of 2011 dated

22.3.2011 under section 302 IPC against unknown accused. PW 14, SI

Supriya Ranjan Maji took over investigation of the case. He visited the

place of occurrence. He prepared inquest and sent the dead body for

postmortem examination. It may not be out of place to note that Pratima

was one of the witnesses to the inquest.

3. On 24.3.2011, PW 14 again visited the place of occurrence. He

noticed blood stains on the wall of the bedroom of the deceased. He also

noticed an empty cardboard box on which 'Halonix Limited' was printed.

There were blood stains on the box. He seized the cardboard box

containing blood stains as well as sample of blood from the wall of the

room. On the same day he arrested Pratima, accused No.2. It is alleged

that during the interrogation Pratima made a disclosure statement

claiming that she knew where the hammer used for the murder of her

husband was concealed. On 26.3.2011, PW 14 seized a blood stained

hammer kept behind the stair case of the house on the showing of

Pratima. Forensic report showed presence of blood on the box and

sample seized from the room as well as on the hammer edge. However,

serologist was unable to give definite opinion with regard to the origin

and type of blood as the blood stains had disintegrated. During the

course of the investigation Mihir Mondal, appellant no. 1, who is said to

be the paramour of Pratima surrendered in Court. Chargesheet was filed

against both the accused persons and charges were framed under

sections 302/201/34 IPC.

4. In course of trial, prosecution examined 14 witnesses and

exhibited number of documents to prove its case.

5. Defence of the appellants was one of innocence and false

implication.

6. In conclusion of trial, learned trial Judge by the impugned

judgment convicted and sentenced the appellants, as aforesaid.

Prosecution evidence:-

7. Prosecution examined the following witnesses :-

P.W 1 Dulal Majhi is a neighbor of the deceased. He deposed that

on 22.3.2011, in the morning, he heard hue and cry and woke up. He

saw dead body of Prasanta outside his room in front of one of his

windows. He further deposed that the brother and mother of Prasanta,

who used to ordinarily resided with him, were not present in the house

since 20.3.2011. He had seen Prasanta with his wife Pratima in the

house on that night, i.e, 21.03.2011. At about 1 a.m. on 22.3.2011 he

had seen appellant no. 1 proceeding towards the house of Prasanta. He

also deposed that he had seen Mihir and Pratima gossiping with each

other near a tube-well. They had an illicit relationship. During the cross

examination, he stated that on the night he had woken up to attend

nature's call and went towards the village road on the southern side of

the house. There was no street light in the locality. He also admitted the

factum of illicit relationship between Mihir and Pratima as a rumour.

8. P.W 2, Khokan Mondal, is the uncle of the deceased. He deposed

that at 5/5.30 a.m. on the fateful day he had woken up hearing the

sounds of weeping. He went to the house and found the dead body of his

nephew Prasanta lying outside his room near a stack of bricks. There

was bleeding injury on the right ear and forehead. Pratima did not

disclose how Prasanta was murdered. Police sealed the room of

Prasanta. He lodged FIR, Ext 1. Police came to the spot. He signed the

inquest report. One month prior to the incident, he had seen Pratima

and Mihir gossiping outside the house of Prasanta. On 24.3.2011 police

seized the sample of blood and cardboard box containing blood stains

from the room of Prasanta. He signed the seizure list. On 26.3.2011 on

the showing of Pratima, police seized a hammer beneath the staircase.

During the cross examination, he stated that he did not report the

gossiping between Pratima and Mihir to anybody except his wife. He also

admitted that there was no boundary wall around the house.

9. P.W 3 is another neighbor of the deceased. He deposed that he

saw the dead body of Prasanta with injuries lying outside the house near

a stack of bricks.

10. P.W 4 is the mother of Prasanta. She stated that at the time of

incident, she and her younger son Susanta, were not present at their

home and went to the house of her married daughter at Srirampur,

Ondal. Khokan informed them over the telephone about the untoward

incident. They returned home and she found her son dead. During the

cross examination, she admitted that there was good relationship

between Prasanta and Pratima.

11. P.W 5, Bhupen Mondal, stated that on 22.3.2011 at 2/2.30 a.m.

he woke up to attend nature's call and found Mihir coming out from the

house of Prasanta. He also deposed that on 26.3.2011, on the showing

of Pratima, a hammer had been recovered by the police. He is a

signatory to the seizure Memo of the hammer. During cross

examination, he stated that he told villagers that he had seen Mihir

coming out of the house of Prasanta on the fateful day. Khokan was

present at that time.

12. P.W 6, Bandana Mondal, is the wife of Khokan, PW 2. She deposed

that Susanta, younger brother of Prasanta had told her he had seen

Pratima and Mihir in a compromising position. She also saw Pratima

and Mihir gossiping with each other when she had gone to fetch water.

On 22.3.2011 at 5.30 am, she heard cries of Pratima coming from the

house of Prasanta. She found the dead body of Prasanta with bleeding

injuries lying in front of their room. Police sealed the room of Prasanta.

On the next day police seized blood sample and blood stained cardboard

box from the room.

13. P.W 7, Sasthi Mondal, a villager merely deposed that there was

illicit relationship between Pratima and Mihir and the latter had

disappeared soon after the death of Prasanta. In cross examination he

admitted he was not aware of the illicit relationship between them.

14. P.W 8, Sural Bhuin, another villager stated that Pratima and Mihir

were seen gossiping with each other near the tube-well.

15. P.W 9, Swapan Mondal, is the brother-in-law of Prasanta. He

heard the incident from Khokan and came to the house and saw the

body of Prasanta.

16. PW 12, Susanta Mondal, is the younger brother of Prasanta

Mondal. He deposed that he and his mother had gone to visit the house

of his sister on 20.03.2011. On 22.03.2011 he received a telephone call

from his uncle Khokan. His uncle told him to return to their residence.

Returning home, he found Prasanta lying with bleeding injuries outside

his room beside a stack of bricks. Three months ago, he had caught

Pratima and Mihir Mondal in an intimate position. He narrated the

incident to his aunt Bandana Mondal. After enquiry he came to know

about the illicit relationship between Pratima and Mihir. On 22.03.2011,

police came to the spot and seized blood stained cardboard box and

blood sample from the room. He signed the seizure list on 26.03.2011.

On the showing of Pratima, blood stained hammer was recovered

beneath the staircase. She signed the seizure list too. During the cross-

examination he admitted that apart from Bandana he had not intimated

the incident of intimacy between the Pratima and Mihir to anyone. He

had come to know about the illicit relationship between Mihir and

Pratima within a month after the death of his brother.

17. PW 13, Smt. Badala Pike, is a villager. She stated that the dead

body of Prasanta was lying on the ground. She found bleeding injuries

on the body. Two days after the incident, police opened the sealed room

of Prasanta and seized a cardboard box and sample of blood.

18. PW 11, Dr. Suparna Datta, is the postmortem doctor. She found

the following injuries on the body of the deceased:-

i) Crescentric nail scratch abrasion (semi lunar), measuring

0.6"x 0.1" was placed on the right side of front of neck at the

label of pomum adami 2.4" right to midline.

ii) Crescentric nail scratch abrasion (semi lunar), measuring

0.4"x 0.1" was placed on the left side of the neck in front, 0.5"

above the label pomum adami and 3"away from midline.

iii) Crescentric nail scratch abrasion (semi lunar), measuring

0.5"x 0.1" was placed in front of left side of neck, half inch

below and 0.8" left of injury no. 2.

iv) Crescentric nail scratch abrasion (semi lunar), measuring

0.3" x 0.1" was placed 0.5" below and 0.8" medial in front of

left side of neck below the label of injury no. 3.

v) Crescentric nail scratch abrasion (semi lunar), measuring

0.2"x 0.1" was placed 1.2" medial and 0.5" below the label of

injury no. 4 in front of left side of neck.

vi) Crescentric nail scratch abrasion (semi lunar), measuring

0.6"x 0.1" was placed at the label of pomum adami in front of

left side of neck 2" left of midline.

vii) Crescentric nail scratch abrasion (semi lunar), measuring

0.3"x 0.1" was placed in front of right side of neck, 2.5" right of

midline and almost underneath lower boarder of mandible.

viii) Crescentric nail scratch abrasion (semi lunar), measuring

0.4"x 0.1" over right side of front of neck 0.8" lateral and half

inch below the injury no. 7.

ix) Crescentric nail scratch abrasion (semi lunar), measuring

0.3"x 0.1" in front of right side of neck 1 inch medial and 0.5"

below injury no. 8.

x) Crescentric nail scratch abrasion (semi lunar), measuring

0.2" x 0.1" placed in front of right side of neck 1.2" medial and

0.5" below injury no. 9.

19. She opined that the death was due to the effects of manual

strangulation due to the throttling after incapacitating the subject by

head injury with blunt weapon, ante mortem and homicidal in nature.

She proved the postmortem report marked as Ext. 6. She further opined

that the head injury may be caused by hammer or blunt weapon.

22. PW 14, S.I. Supriya Ranjan Maji, is the investigating officer. On

22.03.2011, he received a written complaint from PW 2. He drew up

formal F.I.R., visited the place of occurrence and took photographs of the

dead body marked as Mat. Ext. IV series. He prepared an inquest report

marked as Ext.-2/1. He sent the body of the deceased for postmortem

examination through PW 10. He prepared a rough sketch map of the

place of occurrence, wherefrom, the body was recovered marked as Ext.-

8. He sealed the bedroom of the deceased on 24.03.2011. He searched

the room of the deceased and found blood stains on the wall. He took

snaps of the blood stains marked as Ext-5. He also found a cardboard

box having blood stains. He seized the articles under a seizure list

marked as Ext-3/2. He interrogated Pratima Mondal, wife of the

deceased and arrested her. After bringing her to the police station he

again interrogated her, and she made statement that she would be able

to trace out the hammer which had been concealed by her. Extract of the

statement was marked as Ext-10. On 26.03.2011, on the showing of

Pratima, the hammer was recovered from beneath the staircase of the

house. The hammer was seized under the seizure list was marked as

Ext.-4/2. Hammer was produced in the court. He prepared another

sketch map with an index of the bedroom marked as Ext.-11. He

collected postmortem report. Mihir Mondal surrendered before the court

on 12.09.2011. Thereafter he submitted the charge-sheet.

Circumstances relied by the prosecution:-

23. Analysis of the evidence on record shows that the prosecution case

rests on circumstantial evidence. Circumstances relied by the

prosecution against the appellants are as follows:-

(i) Mihir Mondal had an illicit relationship with Pratima, wife of

the deceased. Three months ago, they had been caught in a

compromising position by PW 12. They were also seen

gossiping near the tube well;

(ii) PW 1 saw Mihir Mondal on the fateful day around midnight

i.e. 1:00 AM, proceeding towards the house of Prasanta;

(iii) PW 5, another neighbor saw Mihir coming out of the house

of Prasanta around 2-2.30 AM;

(iv) Mihir disappeared from the village after the death of

Prasanta;

(v) Pratima was alone with her deceased husband, Prasanta in

the house on the fateful night. The other inmates viz.,

mother and younger brother of Prasanta had gone to visit

their relation since 20.03.2011;

(vi) Bloodstains were found on the wall and cardboard box kept

inside the room of the deceased Prasanta;

(vii) Pratima, though present in the house with her husband, did

not come out with any plausible explanation with regard to

the cause of death;

(viii) On the leading statement of Pratima, a hammer containing

bloodstains was recovered behind the staircase of the house

of deceased.

24. In Sharad Birdhichand Sarda vs. State of Maharashtra1 the Apex

Court laid down five golden principles in a case based on circumstantial

evidence. The principles are as follows:-

"153. ... (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency,

1 (1984) 4 SCC 116

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

25. Let me examine the prosecution evidence in the light of the

aforesaid proposition of law to test whether the case meets the requisite

standard of proof to hold that it was the appellants who had committed

the murder of the deceased.

Is involvement of Mihir Mondal in the murder proved?

26. The two most vital circumstances relied upon by the prosecution

against Mihir are as under:-

(i) He had an illicit relationship with Pratima, the wife of

the deceased;

(ii) On the fateful night, he had been seen going towards

the house of the victim and coming out therefrom.

27. With regard to the motive of crime i.e. the illicit relationship

between the appellants, prosecution has primarily relied on Susanta

Mondal (PW 12), the younger brother of the deceased. Susanta stated

that three months prior to the incident, he had seen Pratima and Mihir

in a compromising position. He informed the incident to his aunt (PW 6).

But in his cross-examination, the said witness admitted that he had

come to know of the illicit relationship between the appellants within one

month of the death of his brother. If Susanta had seen the appellants in

a compromising position three months prior to the incident, it is

inexplicable how he came to know of the illicit relationship between the

two only one month after the death of his brother.

28. Be that as it may, Susanta's contention with regard to illicit

relationship and the incident of catching the appellants in a

compromising position does not find corroboration from the mother of

the deceased viz., Keya Mondal (PW 4). The said witness is completely

silent about any illicit relationship between her daughter-in-law Pratima

and Mihir. On the other hand, she emphasises there was a good

relationship between Pratima and her husband Prasanta (the deceased).

No doubt, Bandana claims Susanta had informed her that he had caught

Mihir and Pratima in a compromising position, her evidence in this

regard ought to be taken with a pinch of salt. She remained mum with

regard to the said incident and did not even share this vital information

with anyone including her husband, Khokan. Her unnatural conduct

casts doubt with regard to the credibility of her version.

29. Prosecution is a divided house with regard to the incident of

Pratima and Mihir being caught in a compromising position as deposed

by Susanta. Hence, I am unwilling to believe that Susanta with regard to

the incident of finding the appellants in a compromising position.

30. Apart from the aforesaid version, the other evidence with regard to

the illicit relationship is too speculative. PWs 1, 2, 6 and others claim

that they had seen Mihir and Pratima gossiping near the tubewell. It may

not be out of place to note that Mihir is the brother-in-law of Pratima

and resided in a nearby village. Pratima had been married to Prasanta 8-

9 months ago and it has come out from the mouth of Keya, mother of

Prasanta (PW 4) that there was good relationship between the couple. It

is all but natural that a newly married bride would be eager to talk and

exchange notes with a relation from her own family i.e. her brother-in-

law. When viewed from this perspective, mere gossiping between the two

does not partake a sinister connotation and cannot be treated as a

convincing proof of illicit relationship between them.

31. It is also relevant to note that PW 1, in his cross-examination,

admitted that the issue of illicit relationship is mere a rumor and

another villager (PW 7) also accepted that he had no personal knowledge

regarding the illicit relationship. Prosecution has singularly failed to

prove the motive of the crime i.e. illicit relationship between Mihir and

Pratima.

32. The other incriminating circumstance viz., presence of Mihir at the

place of occurrence is founded on the versions of PWs. 1 and 5. PW 1

claimed that between midnight and 1.30 AM on 22.03.2011 when he had

woken up and had gone to answer nature's call in a village road situated

at the southern side of the house, he had seen the appellant No.1, Mihir

proceeding towards the house of the deceased. During cross-

examination, he admitted that there was no street light in the locality.

Sketch map prepared by the Investigating Officer (PW 14) (Ext.8) shows

that the main road leading to the house of the deceased is on the

northern side of the house of PW 1. The witness had claimed that he had

gone to the village road on the southern side of his house to answer

nature's call. There was no streetlight in the locality. Under these

circumstances, it is most unlikely that PW 1 could have noticed Mihir

moving down the main road situated at the northern side of his house

when he was not on that side of the house.

33. Conduct of PW 1 immediately after discovery of the dead body of

Prasanta also does not inspire confidence. In his cross-examination, he

claimed that he withheld this vital information from the uncle of the

deceased (Khokan). Non-disclosure by a witness who had seen a suspect

moving towards the house of the deceased from the family members of

the deceased renders his version in the court suspect and I am unwilling

to rely on his deposition to hold that he had seen Mihir proceeding

towards the house of Prasanta.

34. PW 5, another villager who claimed to have seen Mihir come out of

the house of Prasanta is equally unreliable. He has also claimed that he

had seen Mihir when he woke up to answer nature's call. In the cross-

examination, he stated that he disclosed the incident to Khokan, the FIR

maker. But in the FIR Khokan has not disclosed this vital fact.

35. A First Information Report need not only be used to contradict or

corroborate its maker. Omission in the FIR with regard to a material fact

which is significant for the unfolding of the prosecution case renders

such fact improbable and strikes at the root of the prosecution case.

Reference may be made to Ram Kumar Pande v. State of Madhya

Pradesh2 wherein the Court held:-

"9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on March 23, 1970, were bound to have been communicated. If his daughers had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

36. Lack of corroboration from Khokan, PW 1 either in Court or in the

FIR with regard to disclosure by PW 5 about Mihir coming out from the

house of the deceased renders the evidence of the said witness doubtful.

Hence, I am of the opinion that the prosecution evidence with regard to

the presence of Mihir near the place of occurrence is not reliable and the

said circumstances cannot be said to have been proved beyond

reasonable doubt.

37. In the absence of the aforesaid two incriminating circumstances,

the only other circumstances against Mihir relied on by the prosecution

is his disappearance from the village after the incident as deposed by PW

7. In his examination under Section 313 of the Code of Criminal

Procedure, Mihir had claimed that he was a khalasi (helper) in a truck

and was away from his village in connection with his work. When an

accused gives a probable explanation during his examination under

Section 313(1)(b) of the Code of Criminal Procedure which is neither

patently absurd nor improbable, it is the duty of the Court to consider

AIR 1975 SC 1026

the same. Failure to do so vitiates the conviction. In Reena Hazarika vs.

State of Assam3 the Court observed as follows:-

"19. ... If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated."

38. Similar view is reiterated in Premchand vs. State of Maharashtra4

as follows:-

"15. *** *** *** 15.1. *** *** *** 15.2. *** *** *** 15.3. *** *** *** 15.4. *** *** *** 15.5. *** *** *** 15.6. *** *** *** 15.7. *** *** *** 15.8. *** *** *** 15.9. If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyse and consider his statements.

15.10. Any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction."

(2019) 13 SCC 289

(2023) 5 SCC 522

39. Trial Court has not adverted to the explanation of the accused

during his examination under section 313 CrPC. Hence, his absence

after the crime cannot be considered as an incriminating circumstance,

i.e abscondence to bring home the guilt.

40. Thus, I am inclined to hold the circumstances relied upon against

Mihir Mondal are neither convincing nor have been proved beyond

reasonable doubt to form a complete chain to unerringly point to his

guilt. Probable hypothesis of innocence of Mihir cannot be wholly ruled

out.

Did Pratima alone commit the murder?

41. Charge against Pratima is sharing of common intention with co-

accused Mihir Mondal to commit the murder of her husband. It was not

the prosecution case that Pratima alone murdered her husband. No

charge under Section 302 IPC simplicter was framed against her. As

discussed earlier, I am unwilling to accept the prosecution case with

regard to the presence of Mihir at the place of occurrence. I am also not

convinced with regard to the motive of crime i.e. illicit relationship

between the two.

42. Mr. Das, learned Advocate for the State strenuously argues that

there are other incriminating circumstances which establish the guilt of

Pratima beyond doubt. When charge is framed against two accused with

the aid of Section 34 IPC, acquittal of one does not invariably lead to the

acquittal of the other. He relied on Willie (William) Slaney v. State of

Madhya Pradesh5 in support of his contention. Vivian Bose, J.

succinctly expounded the aforesaid proposition as follows:-

"62. It is true that if it cannot be ascertained who struck the fatal blow, then the accused cannot be convicted unless the common intention is proved and in that type of case an acquittal of the co-accused may be fatal to the prosecution. But the converse does not hold good, and if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter, he cannot escape liability because of the charge unless he can show prejudice."

43. In Willie (William) Slaney (supra), there was direct eyewitness

deposing that one of the accused had dealt the fatal blow resulting in

death. Hence, acquittal of a co-accused who is alleged to have shared

common intention does not affect the culpability of the principal accused

who in the facts of the said case was held to have been rightly convicted

under Section 302 IPC simpliciter. Non-framing of charge under section

302 IPC simpliciter in those facts was not considered prejudicial or fatal.

44. Mr. Das submits Pratima was present with her husband Prasanta

in the room on the fateful night. There was no other inmate in the

house. She failed to come out with any explanation regarding homicidal

death of her husband. Even if the presence of co-accused Mihir is

discounted, presence of Pratima at the place of occurrence is proved

beyond doubt and her silence when read in conjunction with other

incriminating circumstances would establish her guilt beyond

reasonable doubt.

AIR 1956 SC 116

45. The special circumstances relied by the prosecution against

Pratima are as follows:-

i) Pratima was present in the house with her husband Prasanta.

No other inmate was present in the house;

ii) She did not explain how her husband suffered homicidal

death;

iii) Bloodstains were present on the wall of the room and

cardboard box kept in the room which probabilises the murder

was committed inside the room of Prasanta;

iv) On the leading statement of Pratima, the weapon of offence i.e.

the hammer was recovered.

46. I have given my anxious consideration to the arguments advanced

on behalf of the prosecution who contended that the aforesaid

circumstances establish the guilt of Pratima.

47. Initially, the prosecution case levelled against Pratima was one of

conjoint liability. Charge was framed against Mihir and Pratima alleging

that they shared common intention and in furtherance of such common

intention committed the murder of Prasanta. Motive to commit the crime

i.e. illicit relationship between the two has not been proved. The

presence of Mihir at the place of occurrence is also doubtful.

48. In this situation, prosecution seeks to shift the culpability

exclusively on the shoulder of Pratima, primarily on the premise that she

was present in the room where the offence occurred and offered no

explanation regarding the cause of death. Prosecution has also relied on

the presence of bloodstains on the wall of the room and on the

cardboard box found inside the room to establish murder had been

committed in the room occupied by Pratima and Prasanta. PW 14

claimed that he had sealed the room on 22.03.2011. Two days later i.e.

on 24.03.2011, he searched the room again and recovered a cardboard

box with blood stains and bloodstains on the wall. Forensic report shows

the presence of blood on the items, but the origin of blood i.e. human

blood and its type could not be ascertained. Evidence on record shows

that at around 5.30 A.M. in the morning of 22.03.2011, Pratima, on

seeing her husband's dead body outside the room, had cried out for

help. Khokan, uncle of the deceased and others assembled at the spot.

Thereafter, Khokan registered FIR. None of the witnesses apart from

Khokan stated that Pratima was questioned with regard to the cause of

death. Even this version of Khokan appears to be an embellishment as

the same is absent in the FIR. There is no evidence on record to show

that how after the murder in the room, the body had been shifted to the

courtyard and kept beside a stack of bricks. It is not improbable Pratima

seeing her husband dead had embraced him. This would cause

bloodstains on her hands and body. Thereafter, she had entered the

room and may have touched various articles causing the transfer of

stains on them.

49. This is a probable hypothesis which has not been ruled out by the

prosecution. On the contrary, no trail of blood from inside the room to

the spot where the body was found was detected. It also relevant to note

that the prosecution has not probabilised through the postmortem

doctor that the body of the victim bore marks of dragging which is

inevitable if the murder had been committed in the house and thereafter

the body had been kept in the courtyard beside a stack of bricks. In this

backdrop, it is hazardous to conclude, relying on a few stains of blood

on the wall and cardboard box that the murder was committed inside

the room and thereafter the body was shifted and kept beside a stack of

bricks.

50. If the prosecution fails to prove beyond doubt that the murder was

committed inside the room where the couple was residing, access of a

third party to the victim cannot be ruled out. It may not be out of place

to note that there was no boundary wall around the courtyard and the

spot from where the body was found was accessible to all. Before the

Court draws an adverse inference against an accused, prosecution is

required to establish the continuity in the links of the chain of

circumstances, so as to lead to the only and inescapable conclusion of

the accused being the assailant, inconsistent or incompatible with the

possibility of any other hypothesis compatible with the innocence of the

accused6. Prosecution has failed to prove the place of occurrence beyond

Reena Hazarika vs. State of Assam, (2019) 13 SCC 289 (see para 9)

doubt. Under such circumstances, it is not advisable to draw adverse

inference against the appellant Pratima under section 106 of the

Evidence Act.

51. The other vital circumstance viz., recovery of the weapon of offence

i.e. hammer on the leading statement of Pratima is most unnatural and

shrouded with mystery. Police conducted a search in the house on

24.03.2011. It is claimed that bloodstains were recovered from the room.

Though the said articles were recovered on 24.03.2011, it is strange that

why the entire house was not searched on that day. Be that as it may,

Pratima was arrested and is said to have made a disclosure statement.

Though the disclosure statement was made on 24.03.2011, alleged

recovery was made after two days i.e. 26.03.2011 from behind the

staircase of the house. No explanation is forthcoming with regard to the

delay in connection to the alleged recovery.

52. Evidence has come on record that the house is a one-storied

building and the sketch map of the house (Ext.11) does not show the

presence of a staircase. It is also very unlikely that in a one-storied

building, there will be a staircase inside the house. So, the prosecution

has not been able to prove the exact place from where recovery was

made. Moreover, there is a time gap of two days from the date of

disclosure and the alleged recovery. During this time, the accused was

in the custody of the police and the possibility of planting the hammer at

the behest of the other relations of the deceased (who had complete

access to the house) cannot be said to be improbable.

53. Prosecution also did not collect fingerprints from the weapon of

offence and there is nothing to show that it was Pratima who had used

the weapon and dealt the blow on the victim to incapacitate and

thereafter strangulate him. This is most essential to establish the charge

of murder simpliciter against Pratima alone.

54. Recovery of the weapon of offence after two days of disclosure and

that too from a place i.e. staircase which appears to be non-existent in a

one storied building, this vital circumstance appears to have not been

proved beyond doubt. When prosecution fails to lead sufficient evidence

to establish the incriminating circumstances beyond doubt by leading

sufficient and convincing evidence, onus does not shift on an accused to

discharge his burden.

55. In this backdrop, I am of the opinion that the prosecution has

failed to prove the vital incriminating circumstances viz., recovery of

hammer on the leading statement of Pratima and the place of occurrence

inside the room of Prasanta beyond doubt. Accordingly, no adverse

inference can be drawn against his wife Pratima.

56. Hence, I am inclined to extend the benefit of doubt to both the

appellants.

57. The appeal is, accordingly, allowed.

58. The appellants viz. Mihir Mondal and Pratima Mondal shall be

released from custody, if not wanted in any other case, upon execution

of a bond to the satisfaction of the trial Court which shall remain in

force for a period of six months in terms of section 437A of the Code of

Criminal Procedure.

59. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial Court at once.

60. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

(Gaurang Kanth, J.)                               (Joymalya Bagchi, J.)




as/akd/sdas/tkm/PA