Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCalcutta High Court (Appellete Side)\nPrasanta Hembram & Ors vs State Of West Bengal on 3 February, 2020Item No.145\n\n\n\n                          IN THE HIGH COURT AT CALCUTTA\n                         CRIMINAL APPELLATE JURISDICTION\n\nPresent:\nThe Hon'ble Justice Joymalya Bagchi\n                And\nThe Hon'ble Justice Bibek Chaudhuri\n\n\n                                   C.R.A.621 of 2016\n                               Prasanta Hembram & Ors.\n                                         -Vs-\n                                State of West Bengal\n\n\nFor the Appellants       :     Mr. Kunal Ganguly\n                               Mr. Arunava Ganguly\n\n\nFor the State            :     Mr. S. G. Mukherjee, ld P.P.\n                               Mr. Partha Pratim Das\n\nHeard on                 :     3rd February, 2020\n\n\nJudgment on              :     3rd February, 2020\n\nJoymalya Bagchi, J. :-\n\n        The appeal is directed against the judgment and order dated 25.07.2016\n\nand 27.07.2016 passed by the learned Additional Sessions Judge - cum - Judge,\n\nSpecial Court, Chinsurah, Hooghly in Sessions Trial No. 2(1)/2015 arising out of\n\nSessions Case No.645 of 2014 convicting the appellants under Sections 302/34 of\n\nthe Indian Penal Code sentencing them to suffer rigorous imprisonment for life\n\nand to pay fine of Rs.3,000/- each in default to suffer further rigorous\n\nimprisonment for further three months.\n\n        Prosecution case, as alleged, against the appellants is to the effect that\n\nPrasanta Hembram (appellant no. 1) was married to Chumki Kisku (deceased\n\nherein) in 2010 according to customs prevailing in their community. At the time of\n                                          2\n\n\nmarriage dowry was given to Prasanta as per his demands.            Soon after the\n\nmarriage, Chumki was subjected to mental and physical torture by her husband,\n\nmother-in-law Bharati Hembram and uncle-in-law Phul Hembral to bring money\n\nfrom her parental home. Victim bore such torture patiently expecting that things\n\nwould improve in future. At times the appellants used to drive the victim out of the\n\nmatrimonial home. Matter was referred to the local panchayat authority. Upon\n\nintervention from well-wishers the appellants assured that they would not torture\n\nChumki in future. She returned to the matrimonial home. On 03.04.2014 Chumki\n\nwas physically assaulted by the appellants and murdered. On 04.04.2014 Mungli\n\nKisku (P.W. 1), mother of Chumki, was informed about her daughter's death. She\n\nrushed to the matrimonial home and found her daughter was lying on the floor.\n\nOn her written complaint, Pandua Police Station Case No. 245 of 2014 dated\n\n27.05.2014 under Sections 498A/406/304B/34 of the Indian Penal Code was\n\nregistered for investigation against the appellants. In conclusion of investigation\n\ncharge-sheet was filed and the case was committed to the Court of Sessions and\n\ntransferred to the Additional Sessions Judge - cum - Judge, Special Court,\n\nChinsurah, Hooghly for trial and disposal. Charges were framed under Sections\n\n498A/302/304B/34 of the Indian Penal Code. Prosecution examined 15 witnesses\n\nand exhibited a number of documents. Defence of the appellants was one of\n\ninnocence and false implication. In conclusion of trial, the trial judge by the\n\nimpugned judgment and order darted 25.07.2016 and 27.07.2016 convicted and\n\nsentenced the appellants, as aforesaid. By the selfsame judgment and order,\n\nhowever, accused persons were acquitted of the other charges levelled against\n\nthem.\n\n        Learned Counsel appearing for the appellants submits that there was\n\ninordinate delay in lodging F.I.R. Although P.W. 6 was present at the time of\n                                            3\n\n\ninquest no allegation was levelled against the appellants with regard to the murder\n\nof the victim housewife. Accordingly, they are entitled to an order of acquittal.\n\n        Learned Pubic Prosecutor with Mr. Das, learned Counsel, argued that the\n\nevidence on record shows that the victim housewife suffered homicidal death at\n\nher matrimonial home. Appellants were present at the place of occurrence and\n\nhave not given any explanation how the housewife suffered homicidal death. There\n\nis also evidence of torture on the housewife over demands of dowry during her\n\nlifetime. Accordingly, the order of conviction and sentence does not call for any\n\ninterference.\n\n        I have considered the evidence on record in the light of the rival submissions\n\nof the parties. P.Ws. 1, 3 and 6 are the relations of the victim. P.W. 1 is her mother\n\nand de facto complainant in the case. She deposed her daughter was married to\n\nPrasanta Hembram. She commenced her matrimonial life at her matrimonial\n\nhome with her husband, Prasanta and mother-in-law, Bharati Hembram. Uncle-\n\nin-law, Phul Hembram used to reside with them. Her daughter was subjected to\n\nphysical torture at her matrimonial home over demands of dowry. She complained\n\nof such torture to her. She was informed of the incident by local people. She\n\narrived at the spot and saw black spot on the neck of her daughter. She also found\n\nblood oozing out from her nose. She put thumb impression on the petition of\n\ncomplaint. In cross-examination, she admitted that Phul Hembram did not reside\n\nin the same mess with Prasanta Hembram.\n\n        P.W. 3 is the sister of Chumki. She deposed the matrimonial relations did\n\nnot behave well with her sister. Her sister died at her matrimonial home. She\n\nfound the dead body of her sister in the veranda with a blackish mark around her\n\nneck.\n                                           4\n      P.W. 6 is the uncle of the deceased. He deposed the victim had died at her\n\nmatrimonial home.\n\n      Evidence of the aforesaid relations appears to be corroborated by P.W. 2, a\n\nneighbour of P.W. 1. He deposed Prasanta and his uncle did not behave well with\n\nChumki. He had heard the incident from Kaliram Kisku, brother of the deceased.\n\n      P.W. 13 is the post mortem doctor. He examined the dead body of the victim.\n\nHe opined death was due to effect of manual strangulation, ante-mortem and\n\nhomicidal in nature.\n\n      Inquest over the body of the victim was conducted by P.W. 11, a police\n\nofficer and P.W. 14, executive magistrate. They proved the inquest reports (Exts. 5\n\nand 8). P.W. 14 deposed she found blood in the nose and mouth of the deceased.\n\nShe also found injuries on the right hand as well as neck of the deceased.\n\n      P.W 12 is the investigating officer in the instant case. He visited the place of\n\noccurrence, prepared rough sketch map. He examined the de facto complainant\n\nand other witnesses. He collected post mortem report and submitted charge sheet.\n\n      From the aforesaid evidence it is undisputed that the victim housewife\n\nsuffered homicidal death at her matrimonial home within four years of marriage.\n\n      The question which falls for decision:- who is the perpetrator of such crime?\n\n      It has been strenuously argued on behalf of the appellants that there is no\n\ndirect evidence connecting them with the murder of the housewife. It is also\n\nargued there is inordinate delay in lodging FIR.\n\n      I find that P.W. 1, mother of the victim in the FIR stated due to mental\n\ndepression there was delay in lodging FIR. It appears that injuries were noted\n\nparticularly on the neck of the victim in the course of holding inquest by the police\n\nofficer, P.W 11 as well as the executive magistrate, P.W. 14. Subsequently, post\n\nmortem doctor P.W 13 opined that the victim had suffered ante mortem death due\n                                           5\n\n\nto strangulation. As forensic evidence on record particularly that of post mortem\n\ndoctor leaves no doubt that victim housewife was murdered, I am inclined to\n\naccede to the explanation given by the mother of the unfortunate housewife that\n\nowing to suddenness and trauma of the unfortunate incident befalling her she was\n\nso perplexed she failed to approach the police immediately and lodge FIR against\n\nthe appellants.\n\n        Hence, conduct of P.W 1 in the aforesaid factual matrix does not appear to\n\nbe so unnatural or unreasonable as to improbabilise the prosecution case of\n\nhomicidal death of the housewife as a whole. Judged from this perspective I am of\n\nthe opinion delay in lodging FIR does not affect the truthfulness of the prosecution\n\ncase.\n\n        On the other hand, there is overwhelming evidence on record that the\n\nvictim housewife suffered a brutal end at her matrimonial home. Her body was\n\nfound in the veranda of the matrimonial home with marks of injuries on her neck.\n\nBlood was seen oozing out from her mouth and nostril. Post mortem doctor also\n\nopined she suffered homicidal death due to manual strangulation.\n\n        Under such circumstances, it was within the special knowledge of the\n\npersons who were ordinarily residing with the housewife at the matrimonial home\n\nhow she had suffered homicidal death.\n\n        It is settled law burden of proof in a criminal case lies on the prosecution.\n\nHowever, in appropriate cases where any relevant fact is within the special\n\nknowledge of the accused, the onus shifts upon him to prove such fact. Court\n\nwould be loath to shift such onus on an accused lightly unless the circumstances\n\nestablished by the prosecution create an irrefutable inference that a relevant fact\n\nis exclusively in the knowledge of the accused. Circumstance leading to the\n\nhomicidal death of the housewife at her matrimonial home is a fact which is within\n                                          6\n\n\nthe special knowledge of the accused who was with her in the room at night when\n\nthe incident occurred. Hence, it would be incumbent on such an accused to\n\nexplain the circumstance leading to her homicidal death. Failure to discharge such\n\nonus would lead to an adverse inference of guilt against the said accused. Trial\n\ncourt appears to have resorted to the aforesaid presumption in law to record an\n\norder of conviction against all the appellants i.e. husband, mother-in-law and\n\nuncle-in-law of the victim housewife on the finding all of them were in the\n\nmatrimonial home on the fateful night. While doing so, the court appears to be\n\nglossed over the cross-examination of P.W 1 wherein she admitted that Phul\n\nHembram did not reside in the same mess with Prasanta and the victim\n\nhousewife. There is also no evidence on record that the couple shared the same\n\nroom with the mother-in-law i.e Bharati Hembram. In a case where the housewife\n\nsuffered homicidal death at her matrimonial home it is advisable not to set the net\n\ntoo wide and come to an inference of guilt against all the inmates of the\n\nmatrimonial home unless it is established beyond doubt that they were in the\n\nsame room with the housewife when she suffered homicidal death. Ordinarily, the\n\nhousewife would be in the exclusive company of her husband at night and not\n\nwith the other matrimonial relations. Under such circumstances, if she suffers\n\nhomicidal death as in the present case, the onus to explain the cause of death\n\nwould lie on her husband who shared her bed for the night and not on all the\n\nmatrimonial relations until and unless some additional evidence is led by the\n\nprosecution that they were also in the same room when the victim suffered\n\nhomicidal death.\n\n      As the prosecution has failed to prove such fact qua appellant nos. 2 and 3\n\ni.e. mother-in-law and uncle-in-law of the victim housewife, I am inclined to\n\nextend the benefit of doubt to them. However, in the light of the materials on\n                                           7\n\n\nrecord which unerringly establish beyond doubt that appellant no 1 i.e. the\n\nhusband shared the bed with the victim housewife on the fateful night when she\n\nsuffered homicidal death, I am inclined to uphold the conviction and sentence\n\nrecorded against him.\n\n       In the light of the aforesaid discussion, conviction and sentence of appellant\n\nno. 1 is upheld.\n\n       Conviction and sentence of appellant nos. 2 and 3 are set aside.\n\n       The period of detention suffered by appellant no. 1 during investigation,\n\nenquiry or trial shall be set off against the substantive sentence imposed on him in\n\nterms of Section 428 of the Code of Criminal Procedure.\n\n       Appellant no. 2 and 3 shall be released from custody, if not wanted in any\n\nother cases, upon execution of bond to the satisfaction of the trial court which\n\nshall continue for six months in terms of section 437A of the Code of Criminal\n\nProcedure.\n\n       The appeal is partly allowed.\n\n       Copy of the judgment along with LCR be sent down to the trial court at once\n\nfor necessary compliance.\n\n       Urgent Photostat Certified copy of this order, if applied for, be supplied\n\nexpeditiously after complying with all necessary legal formalities.\n\n\n\n       I agree.\n\n\n(Bibek Chaudhuri, J.)                                        (Joymalya Bagchi, J.)\n\n\n\n\nSDAS/TAMAL & PA