Kuldip Pathak vs State of Assam

D. Biswas, J.—This appeal is directed against the judgment dated 29.7.98 passed by the Sessions Judge at Barpeta in Sessions Case No. 62/96 convicting and sentencing the Appellant u/s 302 IPC for life and to pay a fine of Rs. 2000/-, in default, to payment to R.I. for six months.

We have heard Mr. J.M. Choudhury, learned Counsel for the Appellant and also Mr. J. Singh, learned, Public Prosecutor, Assam.

An ejahar was lodged with the Bhabanipur Police Out Post on 24.4.1995 with the information that the complainant''s daughter Ms. Dulu Devi was taken away by some miscreants from their house in the night between 23.4.95 and 24.4.95 and, thereafter, she was killed brutally. Shri Kuldip Pathak, the Appellant, was named as the only suspect as he had love affairs with the deceased. The ejahar was forwarded to the Officer-Incharge of Barpeta Police Station and a case was registered u/s 364/302 IPC. Eventually, on conclusion of investigation, the police submitted charge sheet against the Appellant Shri Kuldip Pathak u/s 364 and 302 I.P.C.

4.The learned Sessions Judge framed charge u/s 302 I.P.C. to which the Appellant pleaded not guilty. On conclusion of trial the impugned judgment of conviction and sentence was delivered by the learned Sessions Judge. Being aggrieved thereby, this appeal has been preferred on various grounds.

5.Shri J.M. Choudhury, learned senior counsel submitted that the conviction awarded by the leaned Sessions Judge is based on no evidence, Shri Choudhury argued that the learned Sessions Judge Committed grave error in appreciating the evidence on record. The observation that the chain of circumstances is complete and it leads to the inevitable conclusion that the Appellant had committed the murder is based on hypothesis and presumption. According to Shri Choudhury, the conviction of the Appellant cannot be sustained in law.

The Ejahar (Exhibit-2) clearly shows that the Appellant was named therein as a suspect only for the reason that he was in love with the deceased and that he had once threatened to kill the deceased if he could not marry her.

At the very beginning, we would like to refer to the Medical Evidence on record. P.W. 3 Dr. Indra Nath Bhattacharyya, performed the post mortem examination on 25.4.1995 His findings are as follows:

External appearance:

A female body of average built. Pale looking and emaciated. Rigor - mortis present all over the body.

There were 4 (four) Nos. Of marks in the upper part of the neck on both sides. The marks were of dark colour. It was swallen and margina were irregular.

The tuntue was protruded. The eyes were prominates injected but half open. There was no sign of any other injury.

Cranium and Spinal Canal:

Memrane and brain were congested.

Thorax:

Pleurae was congested. Larynx and trachea contained blood.

Both lungs contained emphysematous patches. On the surface of both the lungs were congested. Pericardium congested.

Right side of the heart was full but left side was empty.

Abdomen:

Mouth and pharynx contained blood.

The hymen was absent but there no sign of rape. Uterus was of normal size.

The injury on the neck was due to throttling and was ante mortem in nature.

In my opinion the death was cause due to asphyxia as a result of throttling.

The evidence of P.W. 3 and the Post Mortem report Exhibit-3 establish the prosecution allegation that Ms. Dulu Devi was murdered. The murder was obviously caused by throttling. There is no eye witness in this case. Therefore, it is the circumstantial evidence which will have to be weighed to see if chain is complete and it leads to the inevitable conclusion that it was the Appellant and none else who had committed the murder.

After careful consideration of the evidence on record, we find that the prosecution is based basically on the following circumstances:

(i) The accused Appellant was the private tutor of the deceased. They were in love and the accused was always trying to dominate her;

(ii) The Appellant was over-zealous and he even threatened to kill her if she talked with any other person including the relatives;

(iii) The accused Appellant was absconding after the occurrence and was arrested on the 4th day after the day of occurrence from the house of one Intaz Ali Khandakar of Barbari Village; and

(iv) The Appellant had confessed to P.W. 7, Shri Trailokya Das, that he had killed Ms. Dulu Devi.

There appears to be no dispute that the Appellant was a private tutor of the deceased since she was a student of Class-V and that they were in love for the last 4/5 years. P.W. 1 Shri Surendra Nath Sarma and P.W. 2 Smti Khiroda Devi, the parents of the deceased and P.W. 6 Shri Dhani Ram Das and P.W. 7 Shri Trailokya Das evinced that they were in love. Even the accused in his answer to the question u/s 313 Code of Criminal Procedure also made a statement that he was in love. Therefore, the prosecution succeeds in establishing the relationship between the accused and the deceased.

It would appear from the evidence of P.W. 1 and P.W. 2 that the accused had a psyche of zealously guarding his lover and even he was not willing to allow her to talk with anybody. P.W. 1 Stated that the accused was in the habit of frequently taking away his daughter to different places. On one occasion, one month prior to the occurrence, when they came late from Pathsala, he had scolded the accused and wanted to know whether he would marry Dulu. But the accused in reply asked him to wait till she completes her matriculate examination. From that day, the accused stopped visiting their house. He has emphatically evinced that the accused had once prevented Dulu from witnessing a theatre at Bhawanipur along with the wife of Heman Das, a neighbouring. It is also available in his statement in cross examination that he had even advised his wife not to allow Dulu to go out with the accused. P.W. 2, the mother of the deceased, stated that the accused did not like Dulu going to any place or talk with anybody including the relatives. Even the accused had threatened Dulu that she would be killed if she talked with anybody.

The evidence of P.W. 1 and 2 clearly establish that the accused was an over-zealous and suspicious lover and he was not in a mood to allow Dulu even to move or talk with any of her relatives. The evidence of above two witnesses also establish that he had threatened to kill Dulu for the above reason.

Besides, the accused was dissatisfied because he was scolded by P.W. 1 for taking Dulu to Pathsala and returning home late in the evening. That apart, once when Dulu was in the house of her maternal uncle at Phularguri, the accused went there and told her that P.W. 1 wanted her to come back home. But P.W. 1 stated that he had given him no such instruction and the aunt of Dulu declined to allow her to accompany the accused back home. This had also engaged the accused.

From the above, it transpires that the accused was a conservative lover trying to put restrictions on her personal affairs. This is indicative of a physiological disorder arising out of despair and frustration peculiar to the mental, condition of the Appellant. Over-zealous and suspicious lover is normally prone to frustration. Frustration leads to irrational conduct. Added with this state of mind, the scolding of P.W. 1 and refusal by the aunt to allow Dulu to accompany him aggravated his mental condition. In such a situation, certain individuals may even take absurd decisions including elimination. This is equally applicable in case of the Appellant also.

From the evidence of P.W. 10, Shri Khurshed Ali, the I.O., we find that the accused was arrested from the house of P.W. 4, Intaz Ali Khandakar situated at Barbari village away from the place of occurrence. He was also forwarded to the court for making the confessional statement P.W. 4 also admitted in his evidence that the accused was arrested from his house. The evidence of the I.O. and of P.W. 7 to this effect remains unassailed even in cross-examination. The absence of the accused from the village immediately after the occurrence and his arrest from the house of Intaz Ali Khandakar after 3 days is a strong circumstance in favour of the prosecution. Being the lover of the deceased, it would have been natural on his part to rush to the scene of occurrence. His conduct in leaving the village and taking shelter in the house of Intaz Ali indicates his complicity with the alleged crime.

Next, let us deal with the last circumstance regarding the extra-judicial confession to P.W. 7 Shri Trailokya Das, P.W. 7, is the uncle of the deceased. According to him, the accused was brought to the Police Station at Bhabanipur after his arrest. P.W. 7 was also present there along with many Ors. . It was 10/11 O''clock in the morning. The accused made a statement that he had entered the room of the deceased by opening one corner of the bamboo partition and brought out the deceased. Both of them were to take poison. But Dulu refused and then the accused had assaulted her and dragged her to a little distance by holding her hair and, thereafter, he had pressed the naval portion of the neck with the fists. He also removed her ''Sameez" and gagged her mouth.

The above confession made in presence of P.W. 7 in the Police Station is not a confession in the eye of law. The accused had declined to make any confessional statement before the learned Magistrate. Therefore, our decision will rest on the three circumstances other than confessional statement made in the Police Station. We would, therefore, now confine our discussion to the three circumstances already captioned hereinbefore with reference to the evidence on record.

From the discussion above, it stands established that the accused was a zealous and suspicious lover. He even tried to impose restrictions on her movement and behaviour. Being the private tutor of the deceased from when she was a student of Class-V, the accused exercised enormous influence on her and, therefore, was in a position to make her to act in accordance with his wishes. It was not difficult to bring her out from the house even in the midnight. There is nothing on record to show that the deceased was in the habit of moving freely. There is also no evidence to show that she was of such a character that might have incurred displeasure of Ors. . She was a student of Class-IX and, therefore, in normal course is not likely to have deep-seated enimity with anyone. The accused was the only person who was in a position to bring her out from her house. Moreover, he had earlier posed threat even to eliminate her if she did not abide by his wishes. His conduct in absconding from his house and taking shelter in the house of Intaz Ali Khandakar read with above traits of his character indicate his guilty mind. Being a lover of the deceased, his conduct in remaining away from the village in the above hideout at barbari not far from the place of occurrence is also indicative of his complicity. These circumstances, devoid of the extra-judicial confession, lead to the irresistible conclusion that it was the accused and none-else who had caused the death of Ms. Dulu Devi.

We have clearly gone through the judgment of the learned Sessions Judge with reference to the evidence on record. We do not find any circumstances available in the evidence, particularly in cross-examination, to show that a different view could be possible in the instant case. There are minor aberrations in the statement of the witnesses, but the same are not adequate enough to obliterate the decision that follows on the totality of the circumstances. Hence, we decline to interfere with the impugned judgment of conviction and sentence.

In the result the appeal is dismissed. A copy of this judgment be forwarded to the accused in custody.