Gobardhan Naiya vs Unknown
2023 Latest Caselaw 959 Cal

06.02.2023                                   CRA 267 of 2002
 M/L. 1
Court No.12        In the matter of: Gobardhan Naiya
 Suvayan/
 Sourav
                                                                         ....Appellant.

                   Mr. Pravas Bhattacharyya
                                                                   ...for the appellant.

                   Ms. Z. N. Khan
                   Mr. Ashok Das
                                                                       ...for the State.

              1.

Heard learned Counsel for both the parties.

2. This appeal arises out of judgment of conviction and order of

sentence dated 15.05.2002 passed by learned Additional

Sessions Judge, Fast Track Court, Diamond Harbour, South

24 Parganas in S.T. Case No. 6 (10) of 2001/S.C. Case No. 7

(6) of 1999 convicting the appellant under Section 302 IPC and

sentencing him to suffer imprisonment for life and to pay fine

of Rs. 10,000/- in default to suffer simple imprisonment for

further 3 years more.

3. This is a case of oxoricide. The occurrence happened at about

11 a.m. on 11.06.1996 in the matrimonial home of the

deceased. As found from the record of the case the appellant

and the deceased were married since about 17 years. They

were blessed with a son and a daughter, the son being the

eldest. The deceased, appellant and their two children were

residing in the spot house. On the date of occurrence, i.e.,

11.06.1996 the deceased was found in the spot house in a pool

of blood and a 'chhura' was found lying near the dead body.

The villagers gathered there and father of the deceased who

has been examined as P.W. 1 also came to the spot being

intimated by some co-villager of the appellant. The father of

the deceased, P.W. 1 thereafter lodged the FIR being scribed by

P.W. 8. The I.O. (P.W. 7) registered the FIR under Section

498A/302 IPC against the present appellant and others,

namely, Sebabala Naiya, Nadiram Naiya, Profullya Naiya, Tulu

Rani Gharami and Amar Gharami.

4. Investigation was taken up and inquest over the dead body

was held. In course of inquest it was found that some hairs

are there in the right hand fist of the deceased. Subsequently,

those hairs were collected and kept in a clean sealed envelope.

In course of investigation the appellant surrendered before the

competent Court after 15 days of the occurrence, he was also

taken on remand and his sample hair was also collected and

kept in a clean sealed envelope. Witnesses were examined but

the I.O. (P.W. 7) did not examine the mother and brother-in-

law of the deceased, i.e., P.W.s 9 and 10 during investigation.

Incriminating seizures were also made and after completion of

investigation charge-sheet was filed against the present

appellant only for offence punishable under Section 498A/302

IPC.

In course of trial, learned Trial Court framed the charge

against the appellant under Section 302 IPC for the offence of

oxoricide.

5. The prosecution has examined 12 witnesses. P.W. 1 is the

father of the deceased, P.W. 9 is the mother of the deceased

and P.W. 10 is the eldest son-in-law of P.W.s' 1 and 9. P.W. 8

is the scribe of the FIR. P.W.s 2, 3 and 4 are co-villagers of the

appellant out of whom P.W. 3 has turned hostile. P.W. 5 is the

'Black Smith' from whom the appellant is alleged to have

purchased a 'chhura' by placing order but P.W. 5 has also

turned hostile. P.W. 6 is the medical officer who conducted

postmortem over the dead body of the deceased. P.W. 12 is the

medical officer in whose presence sample hair of the appellant

was collected. P.W. 11 is the Senior Scientific Officer, Biology

Division, FSL at Belgachia, Kolkata who examined the hair

collected from the right fist of the deceased and sample hair

collected from the appellant. P.W. 7 is the I.O.

Defence plea is one of complete denial and false

implication.

6. It is not disputed at the Bar that the case is based entirely on

circumstantial evidence. Learned Trial Court in the judgment

has enumerated the circumstances on the basis of which he

reached the conclusion regarding guilt of the appellant. Those

circumstances are

1. That there was strained relationship between the

appellant and the deceased regarding some issues.

2. That appellant used to stay with the deceased in the

same house where the dead body of deceased was found.

3. The appellant was seen in that village and also requested

P.W. 2, Rabin Sardar to attend the 'salish' as his

(appellant's) father-in-law had arrived.

4. That since after the ghastly incident the appellant was

not seen in that village and only surrendered before the

Court after 15 days of the incident.

5. P.W. 5 identified the appellant as the person who placed

the order to manufacture one 'chhura'.

7. Mr. Bhattacharyya, learned Counsel for the appellant submits

that the circumstances relied on by learned Trial Court is

without any basis and those circumstances are held to have

been proved by the trial court on the basis of surmises and

conjectures. It is further submitted by learned Counsel for the

appellant that there being no matching of the hair found in the

right fist of the deceased and the sample hair collected from

the appellant, it cannot possibly be held that the appellant was

the perpetrator of the crime.

Mr. Das, learned Counsel for the State on the other hand

support the impugned judgment and submits that there being

no infirmity in the impugned judgement the appeal be

dismissed.

8. We have anxiously heard learned Counsel for the parties at

length, we have perused the evidence of the witnesses between

the lines and have given our anxious thought to the

submissions advanced by learned Counsel for the parties.

9. The first circumstance relied on by learned Trial Court is to the

effect that there was strained relationship between the

appellant and the deceased. Except P.W. 9 and P.W. 10 who

have deposed for the first time in Court, no witness has

testified to the effect that there was strained relationship

between the appellant and the deceased. No co-villagers of the

appellant, i.e., P.W.s 2, 3 or 4 as whispered a word to the effect

that there was strained relationship between the appellant and

the deceased. Rather P.W. 2 has testified that the appellant's

mother is very old and she works in Kolkata as a maidservant.

Further he has testified that the appellant is a daily labourer

and goes out for his job. There is some whisper about illicit

relationship of deceased with some other co-villagers before the

incident though none had direct knowledge about such

relationship. Neither P.W. 2 nor P.W. 4 who have testified

about such fact had any direct knowledge about such illicit

relationship of the deceased. P.W. 2 has candidly testified that

appellant had not told to him about such illicit relationship

between his wife and another person. From the sole testimony

of P.W.s 9 and 10 who were chosen to be not examined by the

I.O. during the investigation, it cannot conclusively be held

that there was strained relationship between the appellant and

the deceased specially when their marriage was for more than

15 years and their elder daughter was 12 to 13 years old and

the appellant at no point of time had told any co-villager about

the character of his deceased wife.

10. The second circumstance relied on by learned Trial Court is to

be effect that appellant used to stay with the deceased in the

same house where the dead body of the deceased was found.

This circumstance is an admitted fact. The appellant, the

deceased and their children were staying in the same house.

The occurrence happened at about 11 a.m. in the morning. In

the morning of the occurrence day, the appellant had gone to

call P.W. 2 in his (P.W. 2's) absence in the house, for a 'salish'

as his father-in-law had come. Thereafter, none has seen

appellant in the village. There is no evidence to the effect that

the appellant was present in the scene of occurrence or he was

seen in the village just prior to the occurrence or just after the

occurrence. There is no evidence to the effect that P.W. 2 had

seen him in the morning though he heard from his family

members that appellant had come in the morning to invite

P.W. 2 for a 'salish' in his house. A person who had taken

steps for 'salish' in the morning cannot immediately take steps

to murder his wife. When the incident happened in the day

time there were also possibility on the part of the other persons

to commit the offence in absence of the appellant in the house.

Therefore, in absence of any positive and affirmative evidence

regarding the presence of the appellant in the village just prior

to the occurrence or at the time of occurrence or just after the

occurrence, we are of the view that this circumstance has also

not been proved.

11. Circumstance No. 3 is to the effect that the appellant was seen

in that village and also requested P.W. 2, Rabin Sardar to

attend the 'salish' as his (appellant's) father-in-law had arrived.

We do not find any merit to consider this circumstance in view

our discussion under circumstance No. 2. Suffice it to say

that father of deceased was there in the village prior to the

occurrence if evidence of P.W. 2 is to be believed. But there is

nothing on record in the evidence of P.W. 2 to the effect that he

has seen the appellant in village in the morning. Rather the

entire evidence on record is silent about the presence of the

appellant in the village just prior to the occurrence or at the

scene of the occurrence or after the occurrence.

12. Circumstance No. 4 is to the effect that after the ghastly

incident, appellant was not seen in the village and surrendered

before the Court after 15 days of the incident. So far as this

circumstance is concerned absconding as a fact alone cannot

be held to be an incriminatory circumstance in absence of

other circumstances to provide a link to such factum of

absconding. A person out of fear or out of different

apprehension may abscond from the scene even if he has not

committed any offence so when the other circumstances as per

discussion (Supra) have not been proved, this circumstance

though admitted by the defence cannot be held to be an

incriminatory circumstance against the appellant.

13. The 5th circumstance relied by learned Trial Court is to the

effect that P.W. 5, the 'Black Smith' had identified this

appellant as the person who had placed the order to

manufacture one 'chhura'. This circumstance has no potency

to stand on its own alone in as much as P.W. 5 has turned

hostile and he had only testified that the present appellant had

placed order for manufacture of a 'chhura' which may be of

many use in a village life. The 'chuura' has not been identified

by P.W. 5 as being one made by him and this being the nature

of evidence this circumstance has no relevance so far as the

present case is concerned.

14. Coming to the other evidence, the I.O. has testified that during

inquest some strand of hairs were found in the right fist

between the finger of the deceased. Those hairs were collected

carefully and kept in clean sealed cover and were sent for bio-

logical examination along with sample hair of the appellant

collected in presence of P.W. 12. Both the hairs were

examined by the Senior Scientific Officer, P.W. 11 who has

very emphatically testified that the hairs found in the right fist

of the deceased between her fingers do not match with the

sample hair of the appellant.

15. From the hair in the right fist of the deceased it is clear that

when the perpetrator of crime or the actor has come to assault

or has given the fatal assault, there has been defence attack by

the deceased and she has caught hold of the tuft of hair of the

assailant's head which in course of assault has come to the

hand of the deceased. The hair found in the hand of the

deceased is the hair of that person who had committed the

offence. But ironically here, the hair found in the right fist of

the deceased do not match with the sample hair collected from

the appellant. This fact alone negative the role of the appellant

in the alleged crime.

16. Regard being had to our discussion (Supra), we are

constrained to hold that the prosecution has failed to prove the

charge against the appellant beyond reasonable doubt and the

appellant is entitled to be acquitted.

17. Accordingly the impugned judgement of conviction and order

of sentence passed by learned Additional Sessions Judge, Fast

Track Court, Diamond Harbour, South 24 Parganas in S.T.

Case No. 6 (10) of 2001/S.C. Case No. 7 (6) of 1999 convicting

the appellant under Section 302 IPC and sentencing him

thereunder are set aside. The appellant is acquitted of the

charge.

18. The appellant being stated to be on bail he be discharged of

the bail bond.

19. Accordingly, the appeal being CRA 267 of 2002 is allowed.

20. Let a copy of this judgment along with LCR be sent down to

the trial court forthwith.

21. Urgent certified copy of this order, if applied for, be given to the

parties, upon compliance of necessary formalities.

(Chitta Ranjan Dash, J.)

(Partha Sarathi Sen, J.)