KESTO GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment and orders of sentence passed by the learned Additional Sessions Judge, 4th Court, Burdwan in Sessions Case No. 26 of 1988/Sessions Trial No. 2 of 1987. By the impugned judgment the learned Court below convicted the three appellants under Sections 302/34, I.P.C. and also under Section 201, I.P.C. and sentenced them to imprisonment for life and to a fine of Rupees 2,000/- each, in default to R.I. for six months for their conviction under Sections 302/34, I.P.C. and also to R.I. for seven years each and to a fine of Rs. 1,000/- each, in default to R.I. for three months each for their conviction under Section 201, I.P.C. The sentences were, however, directed to run concurrently. The present appeal is directed against the said orders of conviction and sentence.

(2.) The prosecution case, in short, is that in the evening of the 14th March, 1984 a married woman aged about 18 years, Mira, was murdered by the accused persons in the house of her husband by strangulation and thereafter, her dead body was hung from the beam of the room simulating it to be a case of suicide. It may be mentioned here that the appellant-accused No. 2 Babulal Ghosh is the husband of the deceased Mira and the appellant-accused No. 1. Kesto Ghosh is her father-in-law. The appellant-accused Dilip Ghosh is the cousin brother of the husband of the deceased. It is the further prosecution case that in that evening at about 7/7.30 p.m. while P.W. 1 Ashok Kr. Mallick, the brother of the deceased Mira and P.W. 2 Subel Mallick and P.W. 3. Santosh Mallick were passing along the path by the side of the house of the appellant Kesto Ghosh they heard some sound coming from the said house and on hearing the same they entered into the house and saw that Kesto Ghosh was standing on the varandah and on seeing them he expressed that Mira had committed suicide and on hearing the same Ashok Mallick and his two companions entered inside the room and saw that Babulal Ghosh and Dilip Ghosh were hanging the body of Mira from the beam of the room by a cloth tied to the neck of the body of Mira and on seeing the complainant Ashok and his companions the said two accused Babulal and Dilip rushed out of the room and fled away. It is also the case of the prosecution that thereafter, the complainant Ashok lifted the body of Mira a little and P.W. 2 Subal cut the cloth with which her body was hung. It is the further case of the prosecution that the other persons who were there around the house of Kesto Ghosh, such as, Lalu Ghosh, Adhir Bag, Chandu Ghosh, Madhu Hazra, Monoranjan Ghosh and Ranjit Ghosh also fled away one by one. After completion of investigation police submitted charge-sheet against nine persons. Out of those nine persons who were charge-sheeted, four were discharged by the learned trial Court at the stage of framing of charge as there was no material for framing charge against them and charge was framed against the remaining five accused persons including the present three appellants under Sections 302/34, I.P.C. and under Section 201, I.P.C. On trial, however, the learned trial Judge acquitted two of the accused persons as they were found not guilty but convicted and sentenced the remaining three, namely, the three appellants herein under the aforesaid Sections and also sentenced them as stated above. The convicted accused persons have thereafter preferred the present appeal.

(3.) The prosecution have led evidence to show that the marriage between the accused Babulal and the deceased Mira took place as a sequel to an incident of forcible dragging of hand of Mira by Babulal on one occasion and the subsequent intervention of the villagers in the matter. It is also the prosecution case that although Babulal married Mira in the abovementioned circumstances yet she was not treated well by Babulal and the members of his family and she was not allowed to go to the house of her parents although situated in the same village. The death of Mira took place about 7/8 months after their marriage. It is in evidence that on the date of occurrence a Kali Puja was scheduled to be held in that village and in order to see whether the arrangement of the Kali Puja was complete, the three witnesses P.W. 1 Ashok, P.W. 2 Subal and P.W. 3 Santosh together went to the place of Kali Puja which was at a distance of about 100/150 cubits from the house of appellant Kesto Ghosh. It may be mentioned here that P.W. 1 Ashok Mallick is the brother of the deceased Mira, P.W. 2 Subal Mallick is the cousin brother of D.W. 1 Ashok and P.W. 3 Santosh Mallick is also a cousin brother of P.W. 1 Ashok Mallick. The evidence of these three P.Ws. namely, P.Ws. 1, 2 and 3 in substance is that in the evening of the occurrence at about 7/7.30 p.m. while they were returning from the Kalisthan along the path adjacent to the house of the appellant Kesto Ghosh they heard some sort of sound and then they entered the house of Kesto Ghoh and saw that Kesto Ghosh was standing on the varandah and the door of the room was open and then they three entered inside the room and saw that the appellants-accused Babulal and Dilip were handling the body of Mira tying the same with the beam of the room by a cloth and on seeing them the said two appellants rushed out of the room by pushing them aside and fled away. As regards Kesto Ghosh it is the prosecution case that he was standing on the varandah and he expressed that a calamity had be fallen and Mira had committed suicide. According to the prosecution case, after the appellants Babulal and Dilip rushed out of the room. Ashok lifted the body of Mira a little and Subal cut the cloth which was tied to the neck of Mira, with Bonty and it was detected that Mira had already expired and her body was laid on the floor. P.W. 1 Ashok says that when they were returning they heard a sound inside the house of Kesto Ghosh and being attracted by that sound, particularly because he knew that his sister used to be assaulted in the house of her father-in-law, he and his two other cousin brothers Subal and Santosh entered into the house of Kesto Ghosh and found Kesto Ghosh standing on the varandah in front of the room near the door and on seeing them immediately Kesto Ghosh burst into tears and told them that his daughter-in-law had committed suicide by hanging. It is also the evidence of P.W. 1 Ashok that they then immediately entered into the room and found that Babulal and Dilip were either bringing down or putting his sister tied with the beam inside the room but on seeing them Babulal and Dilip immediately left the body on the floor and fled from the room pushing them aside. P.W. 1 Ashok next says that in order to ascertain whether his sister was alive or not he grasped the body of his sister and lifted the same a little and his cousin Subal immediately cut the piece of cloth with a straw cutting Bonty and he saw that her tongue was protruded and then they laid down the body on the floor and found her dead. It is suggested to him on behalf of the defence in cross-examination that Mira committed suicide by hanging and that on returning home from Kalitala Kesto Ghosh found Mira hanging from the beam and out of fear he shouted and they along with the other local people had gone to the house of Kesto Ghosh on hearing his shout and found that Mira was hanging from the beam. It is further suggested on behalf of the defence that they did not see Babulal and Dilip in that night in the house of Kesto Ghosh. The evidence of P.W. 1 Ashok Mallick is that on hearing shout Naba Kumr Ghosh and others came there but the inmates of the house had fled away. It is his further evidence that Ranjit Ghosh, Adhir Bag, Madhu Hazra, Lalu Ghosh who were the persons present around the house also fled away. P.W. 2 Subal Mallick wants to say that while they were passing by the side of Kesto Ghosh's house they heard some sound occurring from some confusion in the house and on hearing that they entered into the house of Kesto Ghosh and saw that Kesto Ghosh was standing on the varandah in front of the room and the door of the room was open and at that time Kesto Ghosh told them that his daughter-in-law had committed suicide by hanging and they entered into the room as the door was open and found that Dilip was holding the body and had lifted it a little and Babulal was making attempt for tying the body with the beam and on seeing them both Babulal and Dilip immediately ran out of the room pushing them aside. He says that Ashok immediately lifted the body a little and he (Subal) collected a straw cutting Bonty with which he cut the cloth and the body was laid down on the floor. He says that a little bit of her tongue had protruded and saliva was coming down from her nose and mouth. P.W. 3 Santosh Mallick says that after entering the house of Kesto Ghosh they found Kesto Ghosh standing on the varandah in front of the room and the door was open and they also noticed that inside the room Dilip Ghosh was holding the body of Mira and Babulal Ghosh was tying a cloth with the beam of that room and then they rushed out of that room when P.Ws. 1, 2 and 3 were trying to enter the room one after another. In cross-examination he says that when they entered the room they found Mira hanging from the beam. He, however, says that he did not find any mark of injury on the body of Mira besides the mark on her throat. From the evidence of these three P.Ws. namely, P.Ws. 1, 2 and 3 Ashok, Subal and Santosh it is difficult to get an exact idea of the situation associated with the body of Mira when they first saw the body. As we have seen, P.W. 3 Santosh says in cross-examination that he found Mira hanging from the beam which suggests that the process of hanging was complete by that time, although in his examination-in-chief he wanted to say that Dilip was holding the body of Mira and Babulal was tying the same with the beam of that room which would rather suggest that the process of making the body hanging was not yet complete. Then again P.W. 2 Subal says that Dilip was holding the body and lifted it a little and Babulal was making attempt for tying the body with the beam whereas P.W. 1 Ashok Mallick, as we have seen, is not sure whether Babulal and Dilip were bringing down the body or tying it with the beam, but on seeing them Babulal and Dilip left the body on the floor and fled from the room. Now if the body was found hanging from the beam as said by P.W. 3 Santosh Mallick in his cross-examination, it appears quite confusing as to how Babulal and Dilip could flee away from the room after leaving the body on the floor as said by P.W. 1 Ashok. On the other hand it is the evidence of these witnesses that the cloth with which the body was found tied was cut by the P.W. 2 Subal with a Bonty and the body was then laid on the floor. Now if really Babulal and Dilip were trying to bring down the body while it was hanging which is a possibility suggested by the evidence of P.W. 1 Ashok himself, in that case the same will not be consistent with the prosecution case that the accused persons hung the body of Mira after murdering her.