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2012 Supreme(Cal) 280
High Court of Judicature at Calcutta
ASHIM KUMAR ROY & ASIM KUMAR RAY
Ashok Banerjee @ Bapi Bose
Versus
The State of West Bengal
C.R.A. No. 249 of 2000
Decided On : 04-04-2012
the Appellant:Mohan Kumar Sanyal, Advocate.
For the Respondent:Souvik Mitter, Advocate.
Headnote:
CRIMINAL LAW - MURDER - SECTION 302 IPC - CIRCUMSTANTIAL EVIDENCE - BURDEN OF PROOF - SECTION 106 OF THE INDIAN EVIDENCE ACT - INFERENCE FROM CIRCUMSTANCES - CONVICTION UPHELD.
Fact of the Case:
Ashok Banerjee, also known as Bapi Bose, was convicted by the trial court for the murder of his wife, Soma Banerjee, also known as Rani Bose. The prosecution's case was based on circumstantial evidence, including the fact that the appellant and the victim were last seen together in a hotel room, that the appellant was seen leaving the hotel alone with a bag, that the victim was found unconscious in the hotel room and was later declared dead at the hospital, and that the post-mortem report and FSL report indicated that the death was caused by poisoning and electric shock.
Finding of the Court:
The court held that the circumstances established by the prosecution were consistent only with the hypothesis of the guilt of the appellant and that the facts so established were inconsistent with his innocence and excluded the possibility of guilt of any person other than the appellant. The court also held that the appellant had failed to discharge the burden of proof under Section 106 of the Indian Evidence Act and had failed to offer a plausible explanation for the cause of death of his wife during his examination under Section 313 of the Code of Criminal Procedure.
Issues: 1. Whether the prosecution had proved the guilt of the appellant beyond reasonable doubt based on circumstantial evidence. 2. Whether the appellant had discharged the burden of proof under Section 106 of the Indian Evidence Act. 3. Whether the appellant had offered a plausible explanation for the cause of death of his wife during his examination under Section 313 of the Code of Criminal Procedure.
Ratio Decidendi: 1. In cases based on circumstantial evidence, the prosecution must prove a chain of circumstances that are consistent only with the hypothesis of the guilt of the accused and that exclude the possibility of the guilt of any other person. 2. Under Section 106 of the Indian Evidence Act, when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 3. In cases of murder, where the accused is the last person seen with the deceased and fails to offer a plausible explanation for the cause of death, the burden of proof shifts to the accused to explain the circumstances leading to the death.
Final Decision: The appeal was dismissed, and the conviction and sentence of the appellant were upheld.
Asim Kumar Ray, J.
1. This criminal appeal is directed against the judgment and order dated 9-6-2000 and 12-6-2000 passed in Sessions Trial No. XXIX/July/1997 by learned Additional Sessions Judge, 5th Court, Midnapore thereby convicting Ashok Banerjee @ Bapi Bose of the charge under Section 302 of the Indian Penal Code & sentencing him to suffer R.I. for life and also to pay a fine of Rs. 3,000/- in default to suffer imprisonment for six months more.
2. The factual background in a nutshell is that, on 20-1-1997 around 11 a.m. appellant being accompanied by a lady arrived at a lodge named Ma Janhabi Bhawan Hotel at Digha. He wanted an accommodation there for two days disclosing themselves as husband and wife. The owner of the hotel, FIR maker Balai Das /P.W.1 accordingly allotted room No. 5 to them at a charge of Rs. 120/- per day. They caused recording of their names and addresses in the hotel register as Bapi Bose and Rani Bose of Birati. They stayed in the said hotel in room No. 5 for two days. On 22-1-1997 around 7.30 a.m. Bapi Bose was found leaving the hotel with a bag in his hand in a suspicious manner. Balai Das asked him about his wife/Rani to which he in an unprepared manner stated that she was lying in her bed in room No. 5 in drunken condition. He was then asked as to why he was leaving the hotel alone keeping his wife in such a condition to which he finding no alternative confessed before the FIR maker /Balai Das and others who were present there that at the previous night of 22-1-1997 he administered poison to his wife Rani mixing the same with liquor. He stated before them also that he gave electric shock to his wife and has murdered her. He thereafter disclosed that his actual name is Ashok Banerjee, son of Amiya Kumar Banerjee of Ananda Park, P.S. Birati, 24-Parganas (North) and his wife’s actual name is Soma Banerjee, daughter of Sukhjiban Banerjee of Mahajyoti Indira Nagar , P.S. Airport, 24-Pargranas (North ). He has further disclosed that they got married before 5 years and their such marriage was registered under the Registration Act but owing to some family reasons no social marriage ceremony could be performed . He killed his wife due to various reasons including strong suspicion about her character. Appellant, immediately thereafter took the de facto complainant to room No. 5 of the hotel, opened the padlock of the door and showed his wife lying in bed in unconscious condition. Soma @ Rani was shifted to hospital by the FIR maker and others with the help of the appellant where she was declared dead. In the aforesaid premises Balai Das reported the matter to the local police station and in pursuance of such report /FIR , Digha police station case No. 1 of 97 dated 22-1-1997 under Section 302 against appellant Ashok Banerjee @ Bapi Bose was registered.
3. In course of trial 14 witnesses were produced and examined from the side of the prosecution. During trial FIR, inquest report of the dead body of Soma Chatterjee, seizure list, report of doctors, post mortem report of the deceased. Seizure list , sketch map , marriage certificate of appellant and victim, copy of FSL report and copies of photographs of deceased have been marked as Exhibits. Beside it, forwarding report of Investigating Officer and G.D.entry No. 488 dated 22-1-1997 have been marked as Exhibits too from the side of the defence.
4. The case of the defence as it transpires from the trend of cross-examination of P.Ws and statement of the accused comes out during his examination under Section 313 of Cr. P.C. was of complete innocence and false implications.
5. Mr. Mohan Kumar Sanyal , learned Counsel appearing on behalf of the appellant has emphatically contended that the constable has not identified the dead body before the doctor who conducted post mortem examination. There is no evidence regarding such identification at the instance of constable. He has contended too that the carbon copy of the post mortem report of the deceased
