SUDHIR MONDAL Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the order of conviction and sentence passed by the learned Sessions Judge, Malda on 16-6-84 under S. 302, I.P.C. and S.201, I.P.C.

(2.) The learned Sessions Judge passed the said order of conviction and sentence on the finding that the appellant murdered his wife Hem Mondalon or about 11-5-77 and removed the dead-body of Hem Mondal. The learned Sessions Judge found on the basis of the Statement recorded in the FIR which is not a substantive piece of evidence that the occurrence took place on 11-5-77. The father of the victim girl (P.W. 1) is a resident of Deoritola. On being informed by the appellant's father Madar Mondal of Shibpore where the appellant lived with his wife that his daughter, the wife of the appellant, had gone out with the appellant to attend a marriage feast, he returned home in search for his daughter and after learning that his daughter could not be found in the village he lodged the said F.I.R. on 22-5-77. The learned Sessions Judge further found that the skeleton that was recovered beside the western side of the river Marakashi on 22-5-77 was that of the victim, who according to him, was last seen in the company of the accused on 11-5-77 on the way to Debipur from the village Shibpore. He also found that some wearing apparels and bangles and some hairs found beside that skeleton belonged to the victim. The learned Sessions Judge also found that on one morning, "presumably after the occurrence" the accused was found moving with stains of blood on his Dhoti. On the basis of such evidence the learned Sessions Judge passed the aforesaid order of conviction and sentence.

(3.) This case is based purely on circumstantial evidence. Before stating the law regarding substantial evidence we may consider the submissions of the learned advocate for the appellant that the accused cannot be convicted because, he contended, that the identity of the skeleton has not been established and that it was not proved if the alleged death was homicidal. He further contended that even if it is assumed that the victim was last seen in the company of the accused no conviction can rest on such finding in the circumstances of the case. In this connection, the case of Chandmalv. State of Rajasthan reported in AIR 1976 SC 917, State of Punjab v. Bhajan Singh reported in AIR 1975 SC 258 and the case of State Government, M.P. v. Ramkrishna Ganpatrao. reported in 1954 Cri LJ 244 (SC) (supra) were referred to. In the last case reported in 1954 Cri LJ 244 (SC) (supra) the following circumstances were established : - the deceased was last seen in the company of the accused on the date of his death in the house of the accused on 8-10-49. The dead-body of the accused was recovered from a freshly constructed tomb on the third storey of Limsey's house. The plea of alibi of the accused Limsey was found to be untrue. In these circumstances the accused persons were acquitted on the ground that there was no direct evidence in the case of the murder of the victim or of the participation of the accused persons in it. In the second case reported in AIR 1975 SC 258 the accused persons were found entitled to be acquitted on the ground that "there is no evidence on record to show that the two dead-bodies which are alleged to have been recovered in pursuance of the disclosure statement of" one of the accused were of the deceased and that "it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal. In the first noted case namely, that reported in AIR 1976 SC 917 no conclusion with regard to the guilt of the accused could be drawn from the fact that a skeleton was discovered from a pit in the house occupied by the accused Chandmal because not only the identity of the skeleton was doubtful but the cause of the death had also not been established. It had not been shown that the death of the person whose skeleton it was, was due to culpable homicide or unlawful violence. In view of these decisions it may be concluded that a person cannot be held guilty of murder even if the deceased was last seen in his company unless it is proved that the death was homicidal. But it cannot be concluded from these decisions that there case be no conviction unless the dead-body is found. The law on this point has been stated in the decision in the case of Ramanand v. State of Himachal Pradesh reported in 1981 Cri LJ 298 (SC): "Discovery of the dead body of the victim bearing physical evidence of violence has never been considered as the only mode of proving what is the corpus delicti in murder .......where the dead-body of the victim in murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness or by circumstantial evidence, or by both. But where the fact of corpus delicti that is homicidal death is sought to be established by circumstantial evidence alone the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth. That is why under S. 3 of the Evidence Act a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man, under the circumstances of the case, is to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating the circumstances which definitely lead to the conclusion that within all human probability the victim has been murdered by the accused concerned." In that case the fact of homicide was held to have been proved on consideration of the circumstances of that case namely,(i) accused Ramanand had a strong motive to murder his wife Sumitra, (ii) Sumitra was last seen alive with Ramanand in the night between 13-5-72 and 14-5-72, (iii) (a). Ramanand and other two accused had falsely given out that she had committed suicide by jumping into the river, (b) the accused also falsely introduced the story of planting chillies by Sumitra up to 11 a.m. on 14-5-72. (iv). Some of the ornaments that the victim had on her person when she came to the house of the accused on 13-5-72 were recovered from the house of the accused. (v) Some days after the occurrence one parenda was found from the jungle near the village of the accused. There was the bunch of hair in the plated tail of this parenda. The tail appeared to have been cut. The hair sticking in the parenda and those found in the Dupatta of the deceased according to the Forensic expert were of the same person.