S.C. Das, J.@mdashBy filing this appeal, u/s 374 of Cr.P.C. the convict appellant, Sandip Roy challenged the order of his conviction and sentence, dated 29.08.2007, passed by learned Additional Sessions Judge (Fast Track Court), Kailashahar, North Tripura in Sessions Trial No. 102 (NT/K) of 2006, where under he was found guilty of the charges framed against him under Sections 498-A and 302 of I.P.C. and was sentenced to suffer RI for 3(three) years and to pay a fine of Rs. 3000/-(Rupees three thousand), in default of payment of fine to suffer SI for 6(six) months for commission of offence punishable u/s 498-A of I.P.C. and again to suffer RI for life and to pay a fine of Rs. 5,000/- (Rupees five thousand), in default of payment of fine to suffer RI for 1 (one) year for the offence punishable u/s 302 of I.P.C. and that the sentences shall run concurrently. We have heard learned Counsel, Ms. N. Guha for the appellant and learned Additional Public Prosecutor, Mr. P. Bhattacharjee for the State-respondent.
2. Facts of the case, in short, are as under:
2.1 Marriage between the convict-appellant, Sandip Roy and the deceased victim, Samapti Roy was solemnized, on negotiation, as per Hindu rites on 26.02.2005, in the paternal house of Samapti at village Dewanpassa, under Police Station Dharmanagar, and after marriage Samapti entered her matrimonial home holding the hands of her husband, the accused Sandip Roy at village East Gobindapur, Ward No. 2 of Kailashahar Nagar Panchayat, North Tripura district and started their conjugal life. It is alleged that in the marriage parents of Samapti had given a cash amount of Rs. 40,000/-, golden ornaments and other utensils and articles in the form of dowry. Samapti visited her paternal home on a few occasions after the marriage. On 02.06.2006, a Friday, on the day of "Jamai Sashthi" both Samapti and Sandip visited the parental house of Samapti to attend the occasion when other sisters of Samapti with their respective husbands and relatives were also present.
It is the case of the prosecution that the accused asked Samapti to demand Rs. 10,000/ - from her parents but Samapti did not agree since her parents were already burdened with debt which they incurred at the time of her marriage. Her husband threatened her and therefore, she disclosed it to her parents but the parents could not arrange the money immediately and asked her to wait for some time. It is the further case of the prosecution that the accused used to torture on Samapti but she being a woman of introvert nature would remain silent and on rare occasion she would disclose her plight to her parents, brother and sisters. It is also the case of the prosecution that the accused would behave with Samapti most roughly and that he was a habitual drunker and he compelled his wife Samapti to take liquor against her will and on some occasions, the accused forcibly administered liquor to Samapti which she disclosed to her friend and sisters. On 28.06.2006 she visited the house of her sister, Shefali Roy (PW. 15) at Kailashahar and told her that she was tortured by her husband for money. Parents and relatives of Samapti found her upset when she visited her parents'' house on the day of "Jamai Sashthi" and thereafter. On 29.06.2006 at about 2.00 PM Samapti was found lying dead on the floor of her bed room with burn injuries. On an alarm raised by the accused other neighbourers rushed there and found Samapti lying dead with burn injuries and the body was covered with a cloth. PW. 9, a close neighbor of the accused, at first rushed to the house of the accused hearing his alarm and thereafter, he went to the house of PW. 8, Biman Kanti Biswas wherefrom he (PW. 9) made a telephone call to Kailashahar Police Station and informed about the incident that Samapti was lying dead with burn injuries in the house of the accused and accordingly, Police came to the house of the accused. Parental home of Samapti was also informed and PW. 1, Rupak Roy, brother of Samapti with his parents rushed to the house of the accused and found the dead body of Samapti lying on the floor. Rupak Roy (PW. 1) submitted a report in writing stating that his sister, Samapti lying dead with burn injuries in her matrimonial home and on receipt of that report in writing Officer-in-Charge of the PS registered UD Case No. 28/2006 (Exbt. 1) u/s 174 of Cr.P.C. and SI., Sri Jayanta Kr. Dey (PW. 21) was entrusted to investigate the UD Case. Accordingly, SI., Sri Dey taken up the investigation and he called PW 11, Bibekananda Bhattacharjee, a photographer to take photograph of the dead body and the room where the dead body was lying and accordingly, photographs were taken. He prepared Inquest Report (Exbt. 2) over the dead body of Samapti and also seized a kerosene drum from the bathroom of accused by preparing a seizure list. He forwarded the dead body to Rajib Gandhi Memorial (RGM) hospital with a requisition for holding Post Mortem examination over the dead body by a medical team and accordingly, a medical team of three doctors was constituted by the Superintendent of RGM hospital and the Post Mortem examination was done by the medical team.
2.2 In the meantime, on 30.06.2006 Rupak Roy (PW. 1), the brother of deceased Samapti, lodged an FIR in writing alleging that his sister, the deceased Samapti was subjected to cruelty by accused on demand of Rs. 10,000/- and that Samapti might have been killed by the accused, pouring kerosene oil on her body and setting her to fire and on the basis of that FIR which is marked as Exbt. 3, Kailashahar PS Case No. 102/2006 u/s 304 of I.P.C. was registered and PW. 20, Sub-Divisional Police Officer, S.K. Roy taken up investigation of the case.
2.3 In course of investigation, IO (PW. 20) visited the place of occurrence and prepared hand-sketch-map of the house of the accused where the dead-body was lying and examined the material witnesses and recorded their statements. He prayed for taking the records of UD Case with the records of the PS case and collected Post Mortem report, conducted by the Medical Board i.e. PWs. 17, 18 and 19 and found that the death of the deceased was as a result of asphyxia and the bum injuries were post-mortem in nature. On completion of investigation IO submitted charge sheet against the accused for commission of offence punishable under Sections 498-A and 304-B of I.P.C.
2.4 Cognizance was taken on the basis of police report and in due course, on receipt of the police record learned Additional Sessions Judge (Fast Track Court) framed charges against the accused, Sandip Roy for commission of offence punishable under Sections 498-A and 304-B of IPC and the accused pleaded not guilty to the charges.
2.5 In course of trial prosecution examined 21 witness to the prove the charges namely:
PW. 1, Sri Rupak Roy,
PW. 2, Smti Niyati Roy,
PW. 3, Smt. Shyamoli Roy,
PW. 4, Shri Rashbehari Roy,
PW. 5, Smti Subha Roy,
PW. 6, Shri Prahallad Ch. Roy,
PW. 7, Shri Binoy Krishna Bhattacharjee,
PW. 8, Shri Biman Kanti Biswas,
PW. 9, Shri Sitash Das,
PW. 10, Shri Rabindra Bhattacharjee,
PW. 11, Shri Bibekananda Bhattacharjee,
PW. 12, Shri Jhantu Chowdhury,
PW. 13, Shri Sudhanshu Ranjan Roy,
PW. 14, Shri Pankaj Das,
PW. 15, Smt. Shefali Roy,
PW. 16, Shri Bramha Pada Jamatia
(C/5569),
PW. 17, Dr. Satyajit Paul,
PW. 18, Dr. Gitesh Bhattacharjee,
PW. 19, Dr. Debashish Burman,
PW. 20, Shri Shishir Kr. Roy,
PW. 21, Shri Jayanta Kr. Dey.
Out of the aforesaid witnesses, PW. 1 is the brother of the deceased Samapti and is the maker of the FIR. PW. 2 is a friend of the deceased and a neighbor of her parental home. PWs. 3 and 15 are the elder sisters of the deceased. PWs. 4 and 5 are her parents and PWs. 13 and 14 are the brother-in-laws of the deceased.
PWs. 8, 9 and 10 are the neighbours of the accused and are very important witnesses of the case. PW. 12 is also a resident of Kailashahar and an important witness of the prosecution.
PW. 11 is the photographer and he proved the photographs marked as Exbt. MO. 1 series.
PW. 6 is the scribe of the FIR and PW. 7 is the priest of the marriage between the accused and the deceased. PW. 16 is the Constable of Police and he guarded the dead body, PWs. 17, 18 and 19 are the medical officers of the RGM hospital, who jointly conducted the Post Mortem examination over the dead body.
PW. 20 is the IO of the case. PW. 21 is the IO of the U.D. Case which was registered just immediately after the death was reported.
2.6 Prosecution also proved the information given by the PW. 1, on 29.06.2006, immediately after reaching the spot and the FIR lodged by him on 30.06.2006. Prosecution further proved the Inquest Report done over the dead body, seizure list of kerosene drum, burnt cloths of the deceased, hand-sketch-map and an index of the place of occurrence and the Post Mortem report.
2.7 Defence cross-examined prosecution witnesses. After closure of the prosecution evidence the accused-appellant was examined u/s 313 of Cr.P.C. and in his turn for defence evidence, the accused examined himself as DW. 1 and examined two more witnesses namely, Shefali Sengupta as DW. 2 and Md. Abdul Rahim as DW. 3.
Defence case is that marriage between accused and Samapti was solemnized, on negotiation and at the time of marriage the accused demanded nothing as dowry and no cash money and any other article was given at the time of marriage. The conjugal life of the accused was peaceful and there was no disharmony between the accused and his wife, Samapti. The accused was the owner and driver of auto rickshaw and as a matter of routine he used to go out early in the morning with auto rickshaw for trip and would return home to take his lunch at about 2.00 PM. On the date of occurrence, in the early morning at about 6.00 AM, DW. 3 came to the house of accused and Samapti opened the house gate. The house of the accused was surrounded with boundary fencing and in one side it was with boundary wall constructed by his neighbor PW. 8. One can enter his house only through the main gate which was made of ordinary galvanized sheet with wooden structure. The accused went out with his vehicle at about 6.30 AM and he reported the house of PW. 2 to give her lift to the school and was waiting there up to 10/10.30 AM as a matter of routine. He returned home for his lunch at about 2.00 PM and found his house gate bolted from inside. He called his wife to open the house gate but received no response. He then broken open the house gate and entering in the house he found his wife lying dead on the floor of the bed room with burn injuries. He raised alarm and neighbourers came to his house. He found an empty kerosene drum in bath room and the roof of the bath room made of galvanized sheet and wooden structure was burnt. There were marks of burning in the bath room. He requested his neighbourers to help him in shifting his wife but the neighbourers reported the police. His neighbourers found the bath room destroyed by fire and blackening of the roof due to flame. It is the case of the accused that his wife committed suicide setting herself to fire after pouring kerosene oil.
3. Learned Addl. Sessions Judge, considering the evidence on record, held the accused appellant guilty of the charges framed against him and sentenced him as aforesaid.
4. PWs. 1, 2, 3, 4, 5, 13, 14 and 15 made consistent statements that the deceased was subjected to cruelty for not fulfilling the demand of Rs. 10,000/- made by the accused. The evidence on that score is found to be cogent, convincing and worthy enough which has not been shaken in cross-examination.
5. Learned defence counsel Mrs. Guha has submitted that according to the prosecution, the demand of Rs. 10,000/- was first made on 02.06.2006 the day of "Jamai Sashthi" and there is no case that before 02.06.2006 there was any such demand, made by the accused and that on that issue she was subjected to cruelty. She has also submitted that 29.6.2006, on reaching the spot, PW. 1 submitted FIR to police which is marked as Exbt. 1 and in that FIR no allegation was made that Samapti was subjected to cruelty on demand of Rs. 10,000/ - or for any other reasons and after arrival of all the relatives, and consulting them, the informant lodged FIR alleging the exercise of cruelty and further alleging that Samapti was killed by setting her to fire after pouring kerosene oil. The subsequent FIR i.e. Exbt. 3 on the basis of which the police case was registered should be considered as afterthought and false.
6. We have meticulously examined the evidence on record and information lodged by PW. 9, on 29.06.2006 and 30.06.2006 respectively. On going through the Exbt. 1 i.e. the written report submitted by PW. 1 on 29.06.2006, we find that on reaching the house of the accused and on seeing the dead body, PW. 1 simply written down the fact that he found the dead body of his sister lying on the floor of her bed room with burn injuries and requested the police to take step. That report can in no way be treated as FIR since it is not information in respect of a cognizable offence and, it is simply for taking step by the police while the dead body was found with burn injuries. The detail FIR was lodged on 30.06.2006 by PW. 1 narrating the fact when his other relatives also arrived on the spot. It was quite natural for PW. 1 on his first arrival to the spot just to inform the police that he found the dead body of his sister lying on the floor of her dwelling hut with burn injuries. He was supposed to be in great shock on first arrival at the spot which he expressed in his evidence. He was present when the Inquest Report was prepared and PM examination over the dead body was conducted. After PM examination dead body was handed over to them and PW. 1 with his other sisters and sisters'' husbands and relatives took the dead body to Dharmanagar and cremated the dead body there. He lodged the FIR on 30.6.2006 narrating the fact which was disclosed by the deceased on 02.06.2006 i.e. the date of "Jamai Sasthi" and the incident what the deceased disclosed to PW. 15. The consequence of events in the particular facts and circumstances of the case, in our considered opinion, seems to be very natural and we find no reason to doubt the conduct of PW. 1 in lodging FIR on 30.06.2006. Since Exbt. 1 can in no way be treated as FIR, we find no legal embargo in treating Exbt. 3 as FIR of the case on the basis of which the police case was registered and investigation was taken up. No doubt the allegation, what has been made in Exbt. 3, was not stated in Exbt. 1 and in our considered opinion, there is no room at all to doubt the prosecution case for not disclosing the detail fact in Exbt. 1.
The demand of Rs. 10,000/- by the accused was first disclosed by the victim to her parents on the date of "Jamai Shasthi" on 02.06.2006. We find overwhelming evidence on record that the deceased disclosed about the demand made by her husband on the day of "Jamai Shasthi" and not before that Matrimonial offences are normally committed within the four walls of matrimonial home and the neighbourers or other relatives would be able to know about the offence only in the event it is disclosed by the victim or other members of the matrimonial home. It is the case of the prosecution, as well as the defence, what is disclosed in the depositions of PWs. 1, 2, 3, 4, 5, 13, 14 and 15 that the deceased was a woman of introvert nature and was not with the habit of disclosing her personal matters to others freely and frankly. It may happen that demand was made prior to 02.06.2006 by her husband but on the date of "Jamai Shashthi" she first disclosed it to her parents. There is however no direct evidence that before 02.06.2006 the deceased disclosed to any witnesses about any dowry demand made by her husband. The witnesses further stated that the accused was addicted in liquor and he compelled his wife also to take liquor against her will and administered liquor to her on some occasions which the deceased disclosed to her sisters. This fact was not stated in the FIR, lodged by PW. 1. It may happen that the witnesses were reported by the deceased but the fact was not stated in the FIR. It may also happen that it was developed by the witnesses later on that the deceased was also compelled to take liquor since the accused used to take liquor. We may not attach lot of importance to this allegation. On this point we find nothing to appreciate the argument advanced by learned counsel, Mrs. Guha.
7. The most important fact of the case is the evidence of the medical officers, who conducted the PM examination over the dead body. The medical team consisted of PWs. 17, 18 and 19. They have opined that the bum injuries were post mortem in nature. They have arrived at a finding that the death of the deceased was occurred as a result of asphyxia. All the three medical officers, as we find, were experienced doctors of the District hospital who were included in the medical team for PM examination by the Superintendent of the hospital.
Let us first go through the evidence of PW. 17.
In his deposition he stated that on 30.06.2006 he along with the other two medical officers conducted PM examination over the dead body of Samapti Roy at about 1.00 PM and completed it at about 2.00 PM. They found generalized rigor motis with pugilistic aptitude offensive odour, frothing from mouth and nostrils, pilling of cuticle and loosing of scalp hair present. They found limbs of the dead body were rigid and in flexed condition, eyes closed, frothing from nostrils and mouth, others congested and skin around vagina blackened. They also found scattered bum injuries all over the body (minimal in chest and abdomen), over scalp (with loosing of hair), face, neck, back, thighs, legs, singeing of hair of scalp and eye brows and blacking of skin present. Absence of line of redness and vesication. No vital reaction. Burns showing dull white appearance. All the findings proved that those were (burn injuries over the dead body) postmortem burns. On internal examination of the dead body, they found scalp intact and others means, brain, meninges and cerebral vessels were congested. Mouth and tongue were congested but found mouth slightly open. Neck, larynx, thyroid and other neck structures hyoid bones intact, larynx congested. On examination of the chest they found ribs and chest wall intact, chest wall has burn over skin. Diaphragm, esophagus, trachea and bronchi, pleural cavities and lungs were congested. Heart and pericardial sacright cavity was full with dark blood and left cavity was empty. Large blood vessels contained black coloured blood. On examination of abdomen, they found (1) abdominal wall intact with scattered burn injuries, (2) peritoneal cavity congested, (3) stomach congested, distended, stomach with its contents handed over to police, (4) small intestine, large intestines, vermiform appendix mesentery and pancreas were congested, (5) liver, gall bladder and biliary passages were congested. Liver sample was handed over to police, (6) spleen, kidney, renal pelvis, ureters were congested, (7) urinary bludder and urethra were congested and bludder empty, (8) genital organs-uterus congested and empty.
On examination of the dead body, they were of the opinion that the death caused more than two hours but below 48 hours and the cause of death was asphyxia.
The post-mortem report was prepared by them (Board) and written by him (witness) in prescribed form.
PW. 17 and other doctors of the Board put their signatures on the postmortem report. The postmortem report marked as Exbt. 5 and signature of PW. 17 as Exbt. 5/1 and 512. The dead body was identified by Satyaranjan Roy, Rupak Roy, Ramkrishna Shil, and Brammhapada Jamatia, who was a police constable. The blockage of air passage is the actual cause of death and in medical term it is called asphyxia.
In cross-examination, he stated that the causes of asphyxia may be hanging, strangulation, throttling, suffocation, drowning or chocking as per medical term. He found no ligature mark over neck. The witness voluntarily stated that since there were bums injuries over the body so no visible ligature marks were found over neck. The percentage of burn injuries over the body not mentioned in the post mortem report. He has further stated that if any person causes fire on himself/herself and due to flaming of fire and out of shock the said person may die due to suffocation but in such case of death due to burn, all the ingredients i.e. line of redness and vesication, vital reaction will be found if the death is ante mortem by burn injuries. No external injury found over nose and mouth due to burn injuries. No external injury found over nose and mouth. The witness voluntarily stated that since there were bum injuries over the fact so no visible injury was found. The witness admitted that they did not mention in the post mortem report that due to burn injuries over the mouth and nose i.e. face no mark of injuries was found. They found no foreign materials in the air passages of the dead body.
They did not mention in the report that the cause of asphyxia death in this case was either homicidal or suicidal or accidental but surrounding facts and on examination of the dead body it was homicidal in nature.
It was denied that in the instant case death was caused by the deceased herself and suicidal in nature. In case of asphyxia, death may be caused by lack of oxygen. If a person poured kerosene on himself within a 2 cubits surrounding room made by wall and roof by tin shed and fired on his body in that case due to flame and suffocation death may cause due to prevention of normal passage of air but death may linger if there is ventilation within the tin shed room and wall. In all cases of antimortem burn injuries there are presence of line of redness and vesication and vital reaction. Line of redness is permanent in case of antimortem burn injuries. The result of postmortem examination was noted down in loose sheet. He further stated that they have submitted. P.M. report along with loose sheet (result note of the P.M.) to the office of the RGM Hospital. He did not bring those loose sheets with him at the time of deposition. The witness denied that he himself intentionally did not bring the loose sheet or that the loose sheets were different with the P.M. report. He denied the suggestion that all the burn injuries were not post-mortem burn injuries. He also denied the suggestion that they have prepared the P.M. report without examining the dead body.
PWs. 18 and 19 corroborated PW. 17 in the same tune and there is nothing in their cross-examination.
The opinion evidence of the medical officers that the burn injuries found in the dead body of the deceased were post-mortem in nature and that the deceased died of asphyxia has not been shaken in any manner. The cogent evidence could not be disturbed by referring any authority. We find no reason at all to doubt the opinion evidence of the medical officers which inspires all confidence. The trial Court, in our opinion, rightly relied on the expert evidence while holding that it was a case of murder.
8. Learned counsel, Mrs. Guha has submitted that the medical officers were not having with special qualification for holding PM examination and so, it will not be safe to rely on their evidence.
On going through the depositions of PWs. 17, 18 and 19 we find that PW. 17 is an MBBS of 1983 and he joined Tripura Health Services, as a medical officer, in the same year and on the date of examination of dead body he was in service for about 23 years. PW. 18, as a medical officer joined Tripura Health Services in the year 1978 and on the date of PM examination over the dead body i.e. on 30.06.2006 he was in service for about 28 years. PW. 19 joined Tripura Health Services in the year 1999 and on the date of examination i.e. on 30.06.2006 he was in service for about 17 years. It is, therefore, evident that the medical officers were highly experienced in the field and their evidence has not been shaken in any manner in the cross-examination to destroy the credibility of the findings arrived by them after PM examination.
9. Learned counsel, Mrs. Guha, has further submitted that asphyxia may occur because of suffocation, as opined by the medical officers and while the deceased suffered burn injuries she may also die due to suffocation and such a presumption cannot be altogether ruled out.
To consider this argument, let us examine other aspects of the evidence on record.
According to the accused, he went out from house at about 6.30 AM and his wife bolted the door of the house gate from inside. He returned for his lunch at about 2.00 PM and called his wife to open the house gate but received no response. He called his wife with raised voice which his close neighbor PW. 9 heard from his house and he also rushed there. According to the accused, he broken open the house gate and entering into the house he found his wife lying on the floor of the bed room with burn injuries. PW. 9 a close neighbor of the accused in his deposition stated that he heard the accused calling his wife with raised voice and the accused kicking the house gate. Hearing the sound the witness also rushed there and entering into the house of the accused he found the dead body lying in the floor of the bed room and the accused was crying. According to the accused, his wife committed suicide setting herself to fire pouring kerosene oil from a plastic drum and it was committed inside the bath room and the roof of the bath room made of galvanized sheet and wooden structure was destroyed by fire but PWs. 8, 9, and 10 stated nothing about the burning of roof of both room. If the incident of fire occurred inside of bath room it is mysteries how the deceased entered into the bed room and was lying in the floor and the body covered with a cloth whereas all other articles in the bed room were intact and nothing was disturbed.
10. PW. 9 in his deposition stated thus:
On that day at about 2.00 PM I came to my house for taking tiffin. During that time. I heard sound of Sandip Roy who called his wife to open the door of the gate of his house but getting no response accused Sandip Roy kicked the door and entered into his house on running and found the dead body of his wife in his room and he started crying and Sandip Roy also calling me loudly to come. Then and then I went to the house of accused Sandip Roy and he was crying and I have seen the dead body of Samapti was lying on the floor of his bed room and I have seen burn injuries over her body. I have seen the mosquito net over the cot was intact.
I have seen some empty bottles hear the dead body. I noticed no articles destroyed by fire or mischief of the bed room I noticed no smoke from the room. I come to the house of the accused Sandip Roy first. After half an hour Daragababu and Police staff came to the house of Sandip Roy after giving the information to the P.S. over the telephone by me. On arrival of Daragababu and Police staff other persons of the locality came to the house of the accused. The height of the gate of the house of accused Sandip Roy is about man height. The gate is made by simple tin (pati tin) and wooden structure. The door of the bed room of the accused Sandip Roy was open and I have heard no sound of breaking the door of the said room by the accused. Accused Sandip did not try to shift his wife who received burn injuries but he was only crying and crying. Sandip did not tell me to shift his wife to Hospital and I also did not ask him to shift her. The dead body was lying on the floor till arrival of the Police and Daragababu. On that day except Sandip and his wife nobody was present. His mother left for Agartala and she resided there last three months before the said occurrence.
11. PW. 10 in his deposition stated thus:
I am Head Master of Ramkrishna Siksha Pratisthan, Gobindapur, Kailashahar. I know present accused Sandip Roy and he is resident of Govindapur (East) and he was an Ex-student of Ramkrishna Siksha Pratisthan. I know that Sandip married and I have seen his wife only on the day of incident when she was dead. The occurrence took place on the certain day in the last part of June, 2006. On the day of occurrence at about 4.00 PM I was working in my School and have seen some persons of the locality and from them I came to know that wife of Sandip Roy committed suicide by burning in his house. I have seen movement of the persons near to the Institution and from them I heard the news. I informed the matter over telephone to the PS. Thereafter I came to the house of Sandip Roy and found Sandip standing on the varanda of his house and also found 4/5 persons in his house. On being asked Sandip told me that he brought a fair and lovely for his wife but what she had done? Sandip shown me the packet of ''Fair and lovely'' and cried. I found smell of kerosene in his house. I found dead body of Samapti lying on the floor of his bed room and the dead body was covered by a cloth. I found no articles in the bed room in scattered position and have seen all the articles intact and in good condition. The beddings, cloths and mosquito net and other articles of the room were in good condition. By seeing the entire atmosphere of the bed room I understood that the death of the wife of accused Sandip Roy was mysterious and not suicidal death. Daragababu and police staffs came to his house and I left the house. After 4/5 days of the occurrence Daragababu interrogated me about the occurrence and I stated to him. The witness identified the accused Sandip Roy.
12. The evidence of PWs. 8, 9 and 10 is supported by the evidence of PWs. 20 and 21 i.e. the police officers.
Indisputably, PW. 21 immediately after receipt of the telephone call from PW. 8 rushed to the spot and in his deposition he stated that he prepared Inquest Report over the dead body in presence of the accused and other witnesses. He also stated that he brought the photographer i.e. PW. 11 and took the photographs of the dead body and the room. Those photographs with negatives were marked as Exbt. M.O. 1 series and it shows that dead body of Samapti was lying on the floor of the bed room and everything in the bed room including mosquito net which were very near to the dead body were intact and nothing was found disturbed.
PW. 21 stated that he seized the kerosene drum from the bath room of the house in empty condition with smell of kerosene but he found no smell of kerosene inside the bath room and its floor.
PWs. 8, 9 and 10 who are the next door neighbours of the accused rushed to his house, none of them stated that the roof of bath room was burnt or that there was any sign or symptom of burning inside the bath room.
PW. 20 stated that he visited the place of occurrence i.e. the house of the accused and prepared hand-sketch-map with separate index which were marked as Exbts. 8 and 9. He also stated that on visiting bath room he did not found any mark of flame on the wall inside and over the tin shed roof. He also found no marks of flame inside bed room of the accused. He found the accused in his house and accused stated that his wife after burning herself inside the bathroom run into the bed room but he found no mark of flame in the door screen. He also found all articles in the bed room in good condition and normal.
The above evidence makes it clear that the story put forward by the accused that his wife committed suicide setting herself to fire inside the bath room is a false story, set up by him and is not supported by any other evidence. The accused also tried to set up a story that the house gate was bolted from inside but the gate was of man height and he stated to have opened the house gate after kicking it and on entering the house he found the door of the room of the dwelling hut was open and his wife was lying on the floor. While the bed room and bath room both were lying open there was ho scope at all to have suffocation because of flame inside the room.
Suffocation may occur due to smoke, Carbon dioxide and Carbon monoxide but where the rooms were found open there was no scope of suffocation because of smoke either in the bath room or in the bed room.
Therefore, the argument of learned defence counsel that the deceased might have suffered asphyxia due to suffocation, does not inspire us at all, since we find no convincing evidence in support of such argument.
13. Another incriminating circumstance, which the prosecution brought on record, is the evidence of PW. 12, who is a resident of Kailashahar and was closely known to the accused. In his deposition, he stated that on 28.06.2006, i.e., on the previous date of occurrence, at midnight, about 12, while he was proceeding towards his house by an auto rickshaw from hospital, at that time he found accused Sandip Roy at "Laxmicherra Bandh" (an embankment). He went to the house of Sudha Nama to see his ailing mother. After spending about one and half-hours, while he was returning from the house of Sudha Nama, on that night, on foot, he found accused, Sandip near a closed shop of "Laxmicherra Bandh". On being asked by him, Sandip told him that he "Sandip" came there to see his auto rickshaw but he (witness) did not see any auto rickshaw there. He (witness) also noticed that Sandip was in drunken condition at that time. Thereafter, he (witness) left for his house. He used to work as an auto rickshaw mechanic near R.G.M. Hospital. On the following day, in the afternoon, he came to know that wife of Sandip died due to bum injuries.
The above evidence of PW. 12 has not been shaken in cross examination. It is supporting the allegation made by PWs 1, 2, 3, 4, 5, 13, 14 and 15 that the accused was addicted in liquor. Though the accused adduced defence evidence examining himself and two other witnesses, not a single word uttered by him in respect of the evidence of PW. 12. In view of the above evidence, it is clear that the accused returned home sometimes after midnight and the incident occurred on the following day before 2.00 PM at anytime. The medical officers, who conducted the postmortem examination on 30.06.2006, at about 2.00 pm, opined that the death occurred more than two hours and less than 48 hours of the time of examination. The accused examined DW. 3 to show that on 29.08.2007, in the morning, his wife was alive and she opened the house gate when DW. 3 came to his house. The story that DW. 3 had visited his house on that day in the morning or that his wife was alive in the morning when he went out, was not put to any of the prosecution witnesses including his neighbours, i.e., PWs 8, 9 and 10. DW. 2 has stated a different story that in the morning, upto 10/ 10.30 AM, the accused had given a trip to her school and back but she stated that during that period when she was in school, she knew nothing where the accused was. The evidence of DWs. 2 and 3, therefore, does not inspire confidence to support the defence story as put forward by the accused.
14. The evidence on record clearly makes out an incriminating network of circumstances that the accused killed his wife by suffocation and thereafter, pouring kerosene oil on the dead-body made an attempt to disappear the evidence of murder. The medical officers made a consistent and strong opinion that the burn injuries were post mortem in nature. It might happen that after killing the deceased, the accused with a view to screen himself from the offence set up a story of burning of his wife and also set up a story that the house gate was found bolted from inside and he get his entry after it was kicked open. The evidence of PWs. 17, 18 and 19 are found to be credible, worthy and according to the medical science. We find nothing to disbelieve the opinion recorded by those witnesses.
15. In view of the discussions made above, we find no merit in the argument advanced by learned counsel, Mrs. Guha and consequently, we find nothing to doubt the prosecution case on any cogent ground. The trial Judge rightly held the accused guilty of committing murder of his wife and while he found guilty of murder, separate sentence u/s 498-A was not at all necessary. However, since it is concurrent to the life imprisonment we find nothing to disturb the order of sentence as passed by learned Additional Sessions Judge (Fast Track Court), Kailashahar.
16. Accordingly, the appeal stands dismissed.
17. The convict-appellant should serve out the sentence. Send back the LC records along with a copy of this judgment.
