DABLU MAL Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the order of conviction and sentence dated 6th February, 2007 and 7th February, 2007 passed by the Additional District and Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum in Sessions Trial No.IV/July/2003 arising out of Sessions Case No.107 of 2002 under Sections 498A and 302 I.P.C. Whereby and whereunder the accused appellant was directed to suffer rigorous imprisonment for life for the offence committed under Section 302 I.P.C. and rigorous imprisonment for three years with fine of Rs.2000/- in default to suffer simple imprisonment for two months for the offence committed under Section 498A I.P.C.

(2.) The case of the appellant is that the date of incident is 4th August, 1999. The FIR was filed on 4th August, 1999 at 8.15 p.m. by the de facto complainant (father) of the victim girl who during the pendency of the case died. P.W.11 is the mother, P.W.12 is the postmortem doctor and P.W.13 is the I.O. The rest of the witnesses were either declared hostile or were formal witness. The postmortem report does not state whether the death was accidental, homicidal or suicidal. There is no mention of strangulation too. Therefore, the question of involvement of the accused appellant is not evident. In a proceeding under Section 302 I.P.C. the burden of proof is on the prosecution to prove its case and suspicion which forms the basis of conviction, however strong will not take the place of proof. Suspicion is evident from the evidence of P.W. 13. The case of physical and mental torture has not been proved by the prosecution, as the only witness who has spoken about mental and physical torture is P.W.11 (mother) when she mentioned quarrel and illicit relation. But the said is devoid of proof. P.W.3 found the body outside the village. A charge is to be framed under Section 212 Cr.P.C.

(3.) In view of the aforesaid, the evidence of P.W.13 cannot be relied on. P.W.11 also did not sign the inquest or the FIR. The inquest was made in U.D. case in the courtyard. This is supported by the evidence of P.W.13. This is in conflict with the evidence of P.W.11 who has stated that the inquest was made in her presence at the police station. P.W.3 found the body outside the village and he signed on a blank sheet of paper, which according to him is the inquest report. P.W.5 signed later. There is no mention in the F.I.R that the body was found in the house of the accused. Therefore, the evidence of P.W.13 (I.O.) need not be believed. At the time of inquest the body was turned with the help of the accused appellant. This is contrary to the evidence of P.W.13 who has said that the accused appellant was not present at the P.O. This is also contradictory to the statement made in the inquest report. In all probability the accused was arrested at the time of inquest and that is the reason his help was taken in the police station. There is no evidence with regard to finding, the dead body in the matrimonial home. There is no eyewitness to the case and the case is based on circumstantial evidence. P.W.11 (mother) has specifically stated that the accused had nothing to do with the victim girl. It cannot be a case under Section 302 I.P.C. but at best may be a case under Section 304 Part-II I.P.C., as there is lack of evidence with regard to the death of the victim girl at the house of the accused appellant. Quarrel has been highlighted but the quarrel was on a regular basis. There was no provocation so grave or sudden to result in the death of the victim girl. P.W.5 and P.W.8 stayed in the house nearby. The cause of quarrel has been highlighted in the FIR and the evidence of P.W.11, but P.W.13 (I.O.) did not investigate the aspect of provocation. There was no inquiry with regard to residence of the mother and brother although jointness is evident. Ownership of family dwelling house was also not ascertained. Prosecution was required to give evidence of altercation which prosecution has failed to do. Earlier provocation, if any, was condoned by the victim girl by returning to her matrimonial home. Thereafter, there was no question of any provocation, grave or sudden, as the victim girl and the accused were not on speaking term as will appear from the evidence of P.W.11. Although in Exhibit-4 it has been mentioned that the cause of death was strangulation resulting from family dispute between the accused appellant and the victim girl, but there is no evidence in this regard. Onus was cast on the prosecution to prove its case which the prosecution failed to discharge. The prosecution was duty bound to show that the victim girl and the accused were last seen together. Evidence is silent in this regard. Therefore, the benefit of doubt should go to the accused in case two interpretations are possible. There is no evidence of last seen together or altercation. The defence may have failed to adduce evidence but weakness of the defence's case cannot lead the Court to believe that the prosecution has proved its case. Prosecution's case must stand on its own feet. There is no direct evidence and the case is based on circumstantial evidence. The theory of last seen together is not applicable as prosecution did not run this case. The time of death is not known. The victim girl was found dead in the morning and in view of Niranjan Panja v. State of West Bengal, 2010 6 SCC 525 the accused be acquitted. Exhibit-9 is the seizure list. No bed sheet was seized. There is no evidence to connect the entry of the accused to the P.O. No article has been seized from the house of the accused.