Calcutta High Court (Appellete Side)
Minakshi Biring vs The State Of West Bengal on 1 March, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Application
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 141 of 2021
Minakshi Biring
Versus
The State of West Bengal
For the appellants : Mr. Prabir Kumar Mitra, Adv.
: Mr. Pinak Kumar Mitra, Adv.
: Ms. Ariba Shahab, Adv.
For the State : Mr. Prasun Kumar Datta Ld. APP.
: Mr. Santanu Deb Roy, Adv.
For the respondent
nos. 2 to 6 : Mr. Anjan Dutta, Adv.
: Mr. Balaram Pandit, Adv.
Hearing
concluded on : 09th February, 2023
Judgment on : 01st March, 2023
Md. Shabbar Rashidi, J.:
1. The appeal is directed against the judgment dated
December 21, 2020 passed by the learned, 2nd additional
Sessions Judge, Contai in Sessions Trial No.
2/July/2013 arising out of Sessions Case No. 333/2013.
2. By the impugned judgment, the accused persons
were acquitted of the offences punishable under sections
306/302 of the Indian Penal Code.
3. It is the case of the prosecution that one Minakshi
Biring, the wife of the victim, lodged a written complaint
before the officer in charge Contai Police Station within
the district of Purba Medinipur, to the effect that her
husband died on March 5, 2009. According to her, the
said death was very much suspected due to the
provocation of the relatives of her husband, namely
Prakash Biring, Samarendra Biring, Poltu Biring and
Swapan Biring. The written complaint further disclosed
that the aforesaid relatives of her husband had taken
loan from one Shakatipada Panda of Ma Kali medical
store. The husband of the de-facto complainant stood
guarantor to the aforesaid loan of Rs. 4 lakh. The
aforesaid relatives of her husband denied paying back
the loan amount to the said Shakthipada Panda and he
requested the husband of the de facto complainant to
repay the loan amount. Since then, the said Shaktipada
Panda and the afore-named relatives of the husband of
the de facto complainant have been torturing her
husband and also threatened to kill him.
4. The written complaint also disclosed that on March
4, 2009, the aforesaid four relatives of the victim called
upon him to Bagdia village for a discussion over the loan
money. In course of such discussion, the victim was
scolded and abused for which the victim Prabir Kumar
Biring felt very much insulted. On March 5, 2009, the de
facto complainant came to know about the death of her
husband at his native place. She went there and found
the dead body of her husband lying in a field. She could
observe that the entire face of the victim had turned
blackish and few drops of blood oozed out. The dead body
was lying on the ground seemingly put in place by
someone. There was no dust or anything on the dead
body, no kerosene was available at the spot. She also
noticed one Aandrocele bottle and two empty cold drink
bottles lying there. The de facto complainant also stated
that her husband used to tell her that he will be
murdered if he visits his native village at Kanthi,
Midnapore. She also stated that her husband also
advanced a loan of ₹ 2 lakh to his brother Prabhat Kumar
Biring for purchasing some land and a loan of ₹ 3.5 lakhs
to his brother Prakash Kumar Biring for construction of
his building.
5. On the basis of such written complaint, Contai
Police Station Case No. 144/2009 dated July 12, 2009
under Section 306 of the Indian Penal Code was started
against the four accused persons. The police took up the
investigation and on completion of investigation
submitted charge sheet against the six accused persons.
Accordingly, on the basis of materials in his diary,
charges under Sections 306/302 of the Indian Penal
Code were framed against the six accused persons on
January 31, 2016. The accused persons pleaded not
guilty to the charges and claimed to be tried.
Consequently, the six accused persons were put on trial
for the offences punishable under Sections 306/302 of
the Indian penal code.
6. Upon consideration of the evidence on record as
adduced on behalf of the prosecution and examination of
the accused persons under Section 313 of the Code of
Criminal Procedure, the learned Trial Court found the
accused persons not guilty of the offences punishable
under Section 306 and alternatively Section 302 of the
Indian Penal Code and acquitted all the accused persons.
7. Such judgment of acquittal so passed by the
learned Trial Court has been assailed by the appellant. In
course of advancing argument, it is contended on behalf
of the appellant that in the evidence on record, there are
materials to prove that the victim was murdered. As
such, learned Trial Court was not justified in acquitting
the accused persons. It was also contended that there are
materials on record that the accused persons owed
money to the deceased victim which the victim failed to
realize. For such reason, the victim was murdered by the
accused persons.
8. On the other hand, it has been argued on behalf of
the private respondents that there was an inordinate
delay in lodging the first information report on the part of
the de facto complainant and the same has not been
explained by the prosecution to the satisfaction of
learned Trial Court. Learned Trial Court was quite
justified in drawing an adverse inference in terms of the
provisions of Section 114 (g) of the Indian Evidence Act,
1872. It was also pointed out that the written complaint
which is the basis of the first information report was
never proved and admitted in evidence.
9. The learned advocate for the private respondents
have also stated that the prosecution has not been able
to prove the fact of alleged loan advanced by the victim to
the accused persons or even the financial position of the
deceased to advance loan of such a hefty amount. On the
contrary, the testimony of PW2 has been pointed out
where the mother of the victim has stated that it was the
victim who availed loan and could not repay for which he
committed suicide. It was further contended that there is
nothing in the evidence on behalf of the prosecution led
at the trial to establish that the victim was murdered or
he committed suicide for non-payment of loan by his
brothers i.e. the accused persons.
10. Learned advocate for the private respondents have
also relied upon the post-mortem report (Exhibit 7) where
the cause of death has been shown to be due to
poisoning which was suicidal and ante-mortem in
nature.
11. The learned Trial Court, according to learned
advocate for the private respondents, has rightly
acquitted the accused persons for want of cogent and
convincing evidence suggesting the death of the victim to
be homicidal.
12. In order to bring home the charges leveled against
the accused persons, prosecution examined 28 witnesses
in all. In addition, the prosecution also relied upon
certain documentary as well as Material evidences.
13. An acquaintance of the victim deposed as PW 1. He
could identify only one of the five accused persons
present in Court on the date of his deposition namely
Prabhat Biring. He also knew the de facto complainant
and the victim. He, however, did not state anything about
the incident.
14. The mother of the victim and the accused persons
deposed as PW 2. She stated in her deposition that she
had heard that the dead body of Prabir Biring was found
in a field by the side of a pond in the village Bagdia. She
was called by some villagers and then she saw the dead
body. She further stated that she used to reside with the
victim and saw that some persons used to come to take
money from him. She also stated that there were some
disputes regarding taking money from others and due to
the aforesaid transaction, incident of death had occurred.
She, however, stated that she could not say the exact
reason of death of her son Prabir Biring.
15. In her cross-examination, PW2 admitted that there
was a criminal case pending regarding misappropriation
of money in the office of the deceased. She also admitted
that her deceased son had taken loan from some persons
and had failed to repay the said loan in time and for that
reason, he committed suicide by consuming poison. In
her cross-examination on behalf of accused Swapan and
another, PW2 admitted that the deceased had estranged
relations with his wife and he left his village due to
disputes with his wife.
16. The de-facto complainant herself deposed as PW3.
She identified the accused persons in Court and stated
that she had filed the written complaint against the
accused persons. She further stated that the incident
took place on March 4, 2009. On that day, there was a
meeting at her residence. The accused persons were
present in the said meeting. It was decided in the meeting
that there would be another meeting at her in-laws'
house at village Bagdia. At about 6.30/7.15 p.m. on
March 4, 2009, husband of PW3 started for village
Bagdia by the motorcycle of Samarendra Biring
accompanied by Samarendra Biring and Swapan Biring.
She further stated that before leaving, her husband
stated before her that he would return home by that day
but he did not return. At about 9.00 p.m. on March 4,
2009, she made a phone call to the phone of Samarendra
Biring whereupon she was informed that the meeting was
going on and her husband would return the next
morning.
17. PW3 also stated that on March 5, 2009 at about
7.10/7.15 a.m., her son received a phone call informing
that the dead body of the husband of PW3 was lying in
the fields. Hearing this, PW3 started crying. Her eldest
son made a phone call to the husband of her sister
whereupon he came there and took the PW3 to Bagdia
village where the dead body of her husband was lying.
She stated that the place where the dead body of her
husband was lying was 100/150 meters away from her
in-laws house in a paddy field. Going there PW3 found
that the face of the dead body had turned blackish and
his legs were folded. There was no dust on the dead body
she also found injury marks on the back side of the head
of her deceased husband and a deep black mark on his
right rib. She also found one bag and a sealed Androcele
bottle and two cold drink bottles one of which was semi-
empty. PW3 also found some boiled peas and grams lying
there. Her husband was wearing a wrist watch. PW3
identified the said watch and the bottles which were
marked as material exhibits I and II. The Androcele
bottle, sandals and bag belonging to her husband were
also identified by PW3.
18. Seeing the dead body, PW3 stated that, she was in
belief that her husband was murdered by someone and
the articles were placed beside the dead body. She
further stated that when her husband was alive, Prakash
Biring, the elder brother of her husband took a loan of
about ₹ 3.5 Lacs from her husband. Similarly, Prabhat
Biring also took a loan of ₹ 2 lakh from her husband in
the year 2003. She further stated that Samarendra Biring
and Swapan Biring also took loan from her husband. Her
husband also stood guarantor to a loan of Rupees 4 lakh
advanced by Shatipada Panda to Prabhat Biring and
Prakash Biring. However, the said persons were not
willing to repay the loan amount for which Shatipada
Panda demanded money from her husband as a
guarantor.
19. In her deposition, PW3 has stated that as
Madhyamik examination of her eldest son was going on,
she lodged the written complaint on March 7, 2009.
Instantly thereafter, she stated that on March 7, 2009,
the Officer-in-charge of Contai Police Station did not
receive her written complaint. Thereafter, she sent the
written complaint by post on April 4, 2009. Thereafter,
she against sent the written complaint by registered post
with A.D. on April 27, 2009. After that, she moved before
Hon'ble High Court, Calcutta, and upon a direction from
the Hon'ble court, case was started by the Police Station.
She lodged a written complaint written by her uncle. She
proved her signature on such written complaint which
was marked as Exhibit 1.
20. PW3 was extensively cross-examined on behalf of
the accused persons.
21. A resident of village Bagdia deposed as PW 4. He
stated to identify the complainant, the deceased and the
accused persons. He also stated that one of the accused
persons present in the court on the date of his deposition
used to reside at Contai. He further stated that on the
night preceding the incident, he was not at his house.
After returning, he came to know that husband of
Minaakshi died and his dead body was found lying in the
fields, which he saw.
22. Another villager was examined as PW5. He could
not add any substance either to the case of the
prosecution or to the defence.
23. A primary school teacher from Jalalkhanbar was
examined as PW6. He identified some of the accused
persons. He also claimed to identify the de facto
complainant and her husband. He, however, stated that
he had no knowledge about the case filed by Minakshi
Biring. He further stated that on April 10, 2009, after the
death of Prabir Biring, there was a meeting at the house
of Ashok Kumar Mishra which started at about 7.00 p.m.
The de facto complainant Minakshi Biring was also
present in the said meeting. In the said meeting`, it was
discussed that Shakti Panda had advanced money to
Prabir Biring and how it was to be returned. However, no
definite conclusion could be arrived at in the meeting for
which the meeting ended. He further stated that he came
to know about the death of the Prabir Biring over
telephone from his neighbor.
24. One relative of the deceased deposed as PW7. He
identified the accused persons in court and also claimed
to identify the de facto complainant. He has stated that
he came to know that Prabir Biring committed suicide by
taking poison. The defence declined to cross-examine the
witness.
25. The police officer who conducted inquest over the
dead body of the deceased victim was examined as PW8.
He stated that on March 5, 2009, he held inquest at
village Bagdia under Contai PS over the dead body of
Prabir Kumar Biring. He prepared a report in this regard
which he tendered which was marked as Exhibit 2. He
further stated that at the time of conducting the inquest,
he also seized the wearing apparels of the deceased and
an empty bottle of Androcele and some other articles
under two seizure lists which were tendered and marked
as Exhibit 3 and 4 respectively. He also identified the
seized articles in Court. In an answer to the question put
to him in his examination in chief itself, PW8 stated that
the de facto complainant Minakshi Biring also signed on
the inquest report in presence of him and other
witnesses. The defence declined to cross-examine the
witness.
26. Another villager from Bagdia deposed as PW9. He
stated that he identified the de facto complainant, her
husband and the accused persons. He identified the
accused persons in court. He also stated that he heard
that the husband of Minakshi died by taking poison. He
however, could not say if he was examined by the
Investigating Officer.
27. The witness was declared hostile by the prosecution
and in his cross-examination on behalf of the
prosecution, he denied having made any statement
before the IO of this case
28. The Counsel of the locality where the deceased used
to reside was examined as PW 10. In his deposition, he
claimed to identify the de facto complainant and her
husband. He also identified the accused persons in
Court. He further stated that Prabir Biring died in the
year 2009 at his native place at village Bagdia. PW 10
however, could not say as to how Prabir died.
29. Another villager from Bagdia was examined as PW
11. He identified the accused persons in court. He also
claimed to identify the de facto complainant Minakshi
Biring and her husband. He, however, could not say as to
why Minakshi filed the case against the accused persons.
PW 11 was also declared hostile by the prosecution and
in his cross-examination by prosecution, he denied
having made any statement before the Investigating
Officer. He, however, proved his signature on the inquest
report (Exhibit 2/1).
30. The son of the deceased has deposed as PW 12. He
identified the accused persons in the Court. He stated
that on March 4, 2009, in the afternoon, there was a
meeting held at his residence at Jalalkhanbar, Contai.
His parents, Prabhat Biring, Kalpana Biring, Samarendra
Biring and Swapan Biring were present in the said
meeting. He further stated that at that time, his
Madhyamik examinations were going on and his studies
were affected. He complained the same to his father
whereupon his father along with Samarendra Biring and
Swapan Biring left the residence of PW 12 to complete
the meeting at village Bagdia. He further stated that the
accused Prabhat Biring and Kalpana Biring intended to
attend the said meeting subsequently. He also stated that
his father along with others left his house at about
6.30/7.00 p.m. by the motorcycle of Samarendra Biring
accompanied by Swapan Biring. He further stated that
his father did not return back on the same night. On
March 5, 2009, at about 7.15/7.20 a.m., he received a
phone call informing that his father was no more. He
instantly informed the matter to his Meso Tapas Prodhan
over phone. Thereafter, PW 12, his mother and the said
Tapas Prodhan went to village Bagdia. Reaching there at
9. 30/10.00 a.m., PW 12 saw his father lying dead on the
land of the Bidyut Biring. He also found police at the spot
when he reached. One empty Sprite bottle and another
half filled Sprite bottle and also a bottle of Androcele were
found by the side of the dead body. He further stated that
the dead body of his father was taken by the police for
post-mortem examination. He, however, could not say
the cause of death of his father. He came to have been
examined by the investigating officer.
31. A co-employee of the deceased was examined as PW
13. He, in his deposition, claimed to identify the de facto
complainant and also the accused persons by their faces.
He, however, could not say the names of the accused
persons. He further stated that the deceased Prabir
Kumar Biring committed suicide. He further stated that
he was interrogated in connection with the case. He
activated to have stated before police that Prabir Kumar
Biring was a cashier at the office of Contai Central
Fishermen Cooperative Society Ltd at Sankarpur
pumping station. PW 13 also stated that chief executive
officer of his office came to know that Prabir Kumar
Biring had misappropriated money from the office for
which he told him to bring account books from the said
pumping station. One junior accountant Shobha Mishra
scrutinized the said account book and informed that the
statement of account was incomplete. She also reported
to PW 13 that she had also informed the irregularities to
the Chief Executive Officer and she was directed to
complete the account book. He further stated that upon
completion of the account, it revealed that there was a
balance money in the hand of Prabir Kumar Biring and
the Chief Executive Officer directed him to deposit the
said amount in the bank account of the society. P 13,
however, could not say if the said amount was deposited
by the deceased. He also did not know anything
regarding the death of Prabir Kumar Biring.
32. In his cross-examination, PW 13 could not recollect
if he stated before police that Prabir Kumar Biring had
misappropriated a sum of ₹ 4, 40,014. He, however,
admitted that the Chief Executive Officer had directed
Prabir Biring to deposit the said amount in the bank
account of the society and after such direction, Prabir
Kumar Biring did not come to the office at Contai.
33. Another person from village Bagdia was examine as
PW 14. He identified the accused persons and claimed to
identify the de facto complainant Minakshi Biring. He,
however, did not know anything about the complaint.
The witness was declared hostile by the prosecution. In
his cross-examination on behalf of the prosecution, PW
14 admitted that he was interrogated by police in
connection with this case. However, he denied having
made any statement before the police with regard to
taking the loan by the deceased from different sources
and being in mental distress for repayment of such loan.
34. Another villager has deposed as PW 15. He also
identified the accused persons and claimed to know the
de facto complainant and her husband. He also stated
that he did not know anything about the complaint in
this case. This witness was also declared hostile by the
prosecution. In his cross-examination on behalf of the
prosecution, he denied having stated before police about
suicide by Prabir Biring by consuming poison. He also
denied having stated before police that Prabir Biring took
loan from different sources and was under mental
distress for the repayment of the loan amount.
35. Another villager from Bagdia deposed as PW 16. He
is also a hearsay witness. He was declared hostile by the
prosecution and in his cross-examination on behalf of the
prosecution, he denied having made any statement
before police with regard to this case.
36. PW17 is another villager from Bagdia. He knew the
de facto complainant and her husband. He also identified
the accused persons. He has stated that while working in
the brickfield, he heard about the death of the victim and
went to see the dead body. He, however, could not say as
to who died.
37. A neighbor of the accused persons deposed as PW
18. He identified the accused persons in court. He also
stated that he knew the de facto complainant and her
husband. He further stated that he heard about the
death of Prabir at his village. When he reached the house
of deceased, he found police. He was interrogated by the
Investigating Officer. He also signed on the inquest
report. He proved his signature on the inquest report
(Exhibit 2/2). He also signed on the seizure list through
which wearing apparels of the deceased were seized. He
proved his signature on seizure list which was marked
Exhibit 4/1.
38. PW 18 was also declared hostile by the prosecution
and in his cross-examination, he admitted that stated
before police that the seized Prabir Biring was an
employee of Sankarpur oil pump. He, however, denied
having stated before police that deceased Prabir Biring
procured huge amount of loan from different persons
which he could not repay or that he had strained
relations with his wife.
39. PW 19 could not state anything about the incident.
He, however, stated that that Prabir Biring died after
consuming poison.
40. PW 20 is a villager from Bagdia. He witnessed the
dead body of the deceased lying in the fields. He,
however, had no knowledge about the reason of death of
Prabir Biring.
41. The son of de facto complainant has deposed as PW
21. He has stated that the de facto complainant is his
mother. She filed the instant case against the accused
persons. He identified the accused persons in court.
42. He further stated that on March 4, 2009, his mother
along with his elder brother left their house in connection
with Madhyamik examination of his elder brother. He
further stated that on that day at about 2.00 p.m. his
father called upon his uncle Probhat Biring and they had
disputes over some monetary transactions. At that time,
the accused Prabhat Biring assaulted the father of PW
21. He was sleeping then and after waking he found the
accused persons Swapan Kumar Biring, Samarendra
Biring, Kalpna Biring, Prabhat Biring and his parents
were discussing over some issues at about 6.00 p.m. He
further stated that due to Madhyamik examination of his
elder brother, the meeting between his father and the
accused persons was held at village Bagdia. All the
accused persons and the father of PW 21 left for village
Bagdia at about 7.00/7.15 p.m. The mother of PW 21
made a phone call to his father at about 9.00 p.m. when
she was informed that father of PW 21 informed her that
he would return in the following morning. On the next
day at about 6.00/6.30 a.m., his elder brother received a
phone call informing that his father was dead. Upon such
information PW 21, his mother, elder brother, Masi and
Meso went to Bagdia village and found his father lying on
the bank of their pond at a very dirty place. PW 21 also
stated that he found the right leg of his father in folded
condition and the entire face and throat of his father was
totally blackened having emission of cough mixed with
blood from his nose. There were marks of injury on the
back of head of his father and on upper part of right
abdomen. Two bottles of cold drinks, some Chhola, Muri,
one pair of shoes, one bottle of pesticides (Androcele) in
locked condition were found in and around the dead body
of his father. There was also a bag containing wearing
apparels of his father. It was stated that the bedroom of
his father was found close. He also found that police had
arrived at the place of occurrence and he was
interrogated by police.
43. A villager from Bagdia deposed as PW 22. He is a
hearsay witness. He has stated that at the relevant point
of time, he was fishing in the sea and he came to know
about the incident after returning back. He could not say
anything about the reason for consuming poison by the
victim.
44. Another villager was examined as PW 23. He
identified the accused persons. He also came to identify
the de facto complainant and her husband. He further
stated that on the date of occurrence, he went to fields
with his child and found Prabir Biring lying dead in the
field. He, however, could not say how and why Prabir
died.
45. PW 24 is also a villager from Bagdia village. He
knew the de facto complainant, her husband and the
accused persons. He stated that on the date of
occurrence, he was out of village and as such it was not
possible for him to state anything about the incident.
46. PW 25 is also a villager from Bagdia. He has stated
to identify the de facto complainant, her husband and
the accused persons. He also could not state anything
regarding the reason of commission of suicide by
deceased Prabir Biring.
47. The recording officer deposed as PW 26. He stated
that on July 12, 2009, being posted at Contai police
Station, he received the written complaint from one
Minakshi Biring and started Contai PS Case No.
144/2009 dated July 12, 2009 under Section 306 of the
Indian Penal Code. He proved the endorsement of receipt
of the written complaint which was marked as Exhibit
1/1. He also tendered the formal First Information
Report, prepared in his pen and signature (Exhibit 5).
48. The brother-in-law of the victim (husband of wife's
sister) deposed as PW27. He stated that he knew the
accused persons as brothers of deceased Prabir Biring.
He further stated that in the night of March 05, 2009, he
received information over phone from the son of the
deceased that his father was dead. He rushed to the
house of Prabir at Contai and accompanied them to
Bagdia. Upon reaching his residence, PW27 found the
body of Prabir Biring lying on the ground and his face
was completely blackened with marks of injury on his
vault and right side waist. Thereafter, police came there
and removed the dead body. PW27 also stated that Prabir
Biring had disputes with his brother Prabhat Biring and
others and he believed that Prabir was murdered. He,
however, claimed that he was not interrogated by the
investigating officer.
49. In his cross examination, however, PW27 admitted
that he was interrogated by police. He denied a
suggestion to the effect that he stated before police that
Prabir Babu advanced loan to the accused persons and
when he failed to recover the loan amount, he committed
suicide by consuming poison out of frustration. He
admitted, in his cross examination, that he deposed for
the first time in the court regarding the marks of injury
found on the person of Prabir Babu. He also admitted
that Prabir Babu was an employee of Contai CFC. He,
however, denied his knowledge that Prabir Biring
misappropriated some government money while he was
posted as cashier in his office and that a proceeding in
this regard was initiated against him.
50. The Investigating Officer of this case was examined
as PW 28. He has further stated that the previous IO of
this case had collected the post-mortem report in respect
of deceased Prabir Kumar Biring. Being endorsed with
the investigation, he visited the place of occurrence and
compared with the sketch map prepared by the previous
IO. PW 28 did not draw any sketch map. However, he
proved the sketch map with index prepared by his
previous Investigating Officer. He also examined the
witnesses and recorded their statements under Section
161 of the Code of Criminal Procedure. On completion of
investigation, PW 28 submitted charge sheet under
Section 306 of the Indian Penal Code on April 4, 2015
against six accused persons. In his cross examination,
PW 28 stated that the earlier charge sheet was also
submitted under Section 306 of the Indian Penal Code.
51. Upon completion of the evidence on behalf of the
prosecution, the accused persons were examined under
Section 313 of Criminal Procedure Code. In such
examination, the accused persons pleaded innocence and
claimed that the case as made out by the prosecution is
out and out, false. The accused persons, however,
declined to adduce any defense witness.
52. However, upon conclusion of the trial on the basis
of evidence on record and examination of the accused
persons, the learned Trial Court acquitted all the accused
persons.
53. The case made out by the prosecution in the written
complaint discloses that the accused persons committed
murder of the victim. The evidence advanced on behalf of
the prosecution, however, hypothesizes two different
propositions, one suggesting murder of the victim
committed by the accused persons and the other
suggesting suicide committed by the victim.
54. In both the propositions, the common thread is that
the victim has died. Although the autopsy surgeon has
not been examined by the prosecution, the post mortem
examination report, however, has been admitted in
evidence as Exhibit 7. On the basis of evidence of the
prosecution witnesses including PW3, together with the
testimony of Exhibit 7, it goes to establish that the
prosecution has been able to prove that the victim Prabir
Kumar Biring is dead and that he died an unnatural
death.
55. Also, at the trial, an alternative charge under
Section 302 of the Indian Penal Code has been framed
against the appellants. However, considering the
narration of the prosecution witnesses together with the
testimony of Exhibit 7, the possibility of murder of the
victim at the behest of the appellants is completely ruled
out. Exhibit 7 ambiguously establishes that the victim
died of consuming poison which was suicidal in nature.
56. So far as the circumstances leading to the death of
the victim is concerned, the prosecution came up in the
written complaint with a case that the appellants
procured a loan to which the victim stood guarantor.
When the appellants failed to repay the loan amount and
the lender started to demand the loan amount from the
victim as a guarantor, the victim was under tremendous
mental pressure. Evidence on record also goes to show
that the appellants had a meeting with the victim over
the loan amount, firstly at the present residence of the
victim and subsequently at their native village. The victim
accompanied the appellants to his native village in the
evening. On the following morning, PW3 received
information about the death of her husband.
57. The contents of the written complaint submitted by
PW3 as well as her deposition before Court discloses that
she submitted that the prosecution in respect of murder
of her husband was totally based on assumption. Since,
after going to the native village, she found the dead body
of her husband lying in fields and that she noticed that
the face of the victim had turned blackish. She also
found an empty soft drink bottle, ½ filled soft drink bottle
and a bottle of Androcele. The presence of the aforesaid
articles beside the dead body showed her that her
husband was murdered.
58. The offence of murder has been defined in Section
300 of the Indian Penal Code, 1860 as:
300. Murder.--Except in the cases hereinafter
excepted, culpable homicide is murder, if the
act by which the death is caused is done with
the intention of causing death, or--
2ndly.--If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or--
3rdly.--If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to
cause death, or--
4thly.--If the person committing the act knows
that it is so imminently dangerous that it must,
in all probability, cause death, or such bodily
injury as is likely to cause death, and commits
such act without any excuse for incurring the
risk of causing death or such injury as
aforesaid.
59. From the four corners of evidence on record, it
nowhere reveals that the appellant has been attributed
with any over tact whatsoever, which attracts the
provisions of Section 300 of the Code of 1860.
60. It cannot be denied that there is no ocular witness
who has overseen the incident or anything being
perpetrated upon the victim. The case is solely based on
circumstantial evidence.
61. As regards the circumstances leading to the death
of the victim, diverging cases have been made out by the
prosecution witnesses. According to PW3, her husband
was murdered by the appellants. PW3 has, in her
deposition, made out two different cases leading to the
death of her husband. According to one proposition, the
appellants had a loan of hefty amounts to which the
victim stood guarantor. The appellants failed and refused
to repay the loan amount and the lender started
demanding money. It was for this reason, the appellants
committed murder of her husband. The another case
which has been made out by PW3 that the appellants
availed loan of ₹ 3.5 lakh and ₹ 2 lakh from the victim
and in order to avoid repayment of such loan amount,
the appellants committed murder of the victim.
62. It has come out from the evidence on record that
the victim was an employee of fisheries Department as a
cashier. No evidence whatsoever has been adduced on
behalf of the prosecution to establish that the victim
advanced loan of the hefty amounts of ₹ 3.5 lakh and
his 2 lakh to the appellants. There is nothing in the
evidence as to when the aforesaid loan was advanced to
the appellants and what the purpose thereof was. The
evidence also goes to show that the victim has been
residing at a different place totally separate from the
appellants. The evidence on record is totally silent as to
how and from which source, the victim arranged the
aforesaid amount to which he advanced as loan to the
appellants. We do find substance in the contention on
behalf of the appellants with regard to the financial
capacity of the victim to advance loan of such a hefty
amount.
63. PW3, in her deposition, although stated after
witnessing the dead body of her husband, she had an
intuition that her husband was murdered by the
appellants. However, no reason has been assigned
behind such impression. We have already come to a
conclusion that no specific overtact has been assigned
to the appellants pointing to the commission of the
murder of the victim. Moreover, PW3 has also stated
that her husband after having a meeting with the
appellants felt insulted. Such situation also points to a
suicide rather than murder. Although, the knowledge of
PW3 with regard to the particular mental state of the
victim at the material point of time is doubtful.
64. There are other propositions peering out from the
evidence on record which is contrary to the case made
out by the prosecution. According to the case of the
prosecution, the victim is said to have been murdered or
his suicide was abetted for the loan advanced in favour
of the appellants where the victim was a guarantor.
From the evidence of PW6, it transpires that it was the
victim who owed money to a borrower and he was not
able to repay the loan amount. In fact, there was a
meeting over the said issue of repayment of loan amount
owed by the victim, after his death. PW3, the wife of the
victim, also attended the said meeting.
65. There is yet another proposition coming out from
the possession of PW 13. According to such proposition,
the victim was a cashier in the fisheries Department and
in such capacity, he was blamed with defalcation of
huge amount of money belonging to the fisheries
Department. He was directed by his superior to make
good the defalcated money.
66. Therefore, as we have noted hereinbefore on the
basis of materials on record that the post-mortem report
(Exhibit 7) together with the case made out by the
prosecution, the possibility of appellants committing
murder of the victim cannot be sustained.
67. There is also no evidence on record to prove that
the appellants actually abetted the suicide committed by
the victim. The fact of alleged loan advanced by the
victim to his brother's, the appellants, or that the victim
stood guarantor for the loan advanced in favour of his
appellant brothers has not been proved by convincing
evidence. For the sake of argument, even if it is ashamed
that the appellants are refusing and are neglecting to
repay the loan amount and the lender was demanding
the loan advanced by him, such an act on the part of the
appellants, at no stretch of imagination, can be said to
constitute an offence punishable under Section 306 of
the Indian penal code.
68. The alleged incident of death of the victim is said
to have on March 5, 2009. The information with regard
to such an incident appears to have been given on July
12, 2009. There appears no endeavour on the part of the
prosecution to explain the delay in reporting the
incident. In her deposition, PW3 has stated that she
submitted a written complaint on March 7, 2009 which
was not received by the officer in charge. She then sent
the written complaint by post on April 4, 2009 and on
April 27, 2009. Ultimately, a first information report was
registered following a direction from the Hon'ble High
Court at Calcutta. However, the aforesaid documents i.e.
the written complaint lodged on March 7, 2009, April 4,
2009 and April 27, 2009 and the postal receipt showing
its dispatch through post has not been brought on
record.
69. For the aforesaid reasons, the allegation that the
victim committed suicide out of the abetment given by
the appellants seems to have no legs to stand upon.
70. It is trite law that the Court should be so slow in
reverting a finding of trial court unless an apparent
illegality or wrong appreciation of materials is explicit on
the face of such finding. The impugned judgment of
acquittal recorded in the present case does not seem to
suffer from such illegality or otherwise bad. The finding
of the trial Courts appear to be well founded on the
basis of convincing evidence.
71. Therefore, in the light of discussions made
hereinabove, we do not find any reason to interfere with
the impugned judgment of acquittal dated December 21,
2020 passed by the learned, 2nd additional Sessions
Judge, Contai in Sessions Trial No. 2/July/2013.
Consequently, we affirm the same.
72. Accordingly, the instant appeal being CRA No. 141
of 2021 hereby stands dismissed.
73. Trial Court records along with a copy of this
judgment; be sent down at once to the learned Trial
Court for necessary action.
74. Photostat certified copy of this order, if
applied for, be given to the parties on priority basis upon
compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
75. I agree.
[DEBANGSU BASAK, J.]
