SHAMAL DINESH BISWAS v. THE STATE OF MAHARASHTRA

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2. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus :-

PW 7 - PSI Ramdas Mohite, who, on 8/7/2005, was attached to the Sion Police Station, was informed by PW 1 - Abdul Choudhari at 10.30 a.m. about death of wife of the appellant, who was then described as

"Prabhat Mandal", on the first floor of building at Manav Seva Sangh, Sion (West). In order to confirm the incident, PW 7 - PSI Mohite, along with the staff, visited the scene of the incident and noticed that the hall was converted into a room on the first floor by putting cupboards. He noticed the dead body of a female with her hands and feet tied by red coloured cloth and green and white coloured cloth. A gag had been placed in her mouth and her neck was tied by a red coloured scarf. He also noticed blood stains on the area near the dead body. He accordingly recorded the report of PW 1 - Abdul Choudhari at Exh. 10. On the basis of the said report, an offence vide Crime No. 274 of 2005 was registered under Section 302 of IPC against the appellant. An inquiry was made about presence of the appellant, but the appellant was not found. In the presence of panchas, an inquest panchanama of the dead body of the deceased lady was drawn at Exh. 12. The clothes with which her hands and legs had been

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tied as well as the cloth which was used as a gag and the cloth around her neck were seized. Photographs of the dead body were taken and the tracker dog was called. The finger print expert was also called, who lifted certain prints from the scene of the incident. The dead body was referred for postmortem and after postmortem, the clothes were seized under seizure memo at Exh. 17. Statements of witnesses were recorded and thereafter further investigation was entrusted to PW 10 - PI Bhausaheb Pande.

PW 10 - PI Pande, who was also attached to the Sion Police Station, was informed about noticing the dead body of a female on the first floor of Manav Seva Sangh building. Address of the village, where the dead female was residing was obtained as well as the address of the appellant. PW 10 - PI Pande thereafter visited the village of the deceased lady at Taluka - Helancha, District - 24 Paraganas, West Bengal. They had taken the photographs along with them which were found in the briefcase, which was lying near the scene of the incident. Along with the local police, the photograph was shown to one person, who identified the said photograph and gave the address. PW 10 - PI Pande accordingly had gone to the place of PW 9 - Shantanu Biswas, who was the brother of the

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deceased female. The photo copy of the photograph was shown and PW 9 - Shantanu disclosed that the deceased female was his sister whose name was Madhuri. He also disclosed the name of husband of Madhuri as Shamal Dinesh Biswas. PW 9 - Shantanu further disclosed that his sister deceased Madhuri had gone along with her husband to Mumbai for labour work about 10 days prior to the incident. PW 9 - Shantanu handed over the marriage photographs of Madhuri and the appellant. PW 9 - Shantanu was requested to accompany the police and PW 9 - Shantanu also disclosed the address of the appellant. PW 9 - Shantanu then led the police to village Pordah, Post - Bedburi, Taluka Badah, Dist. North Parganas, West Bengal. The appellant was not present in his house, but his parents and brother were present. On inquiry, it transpired that the appellant had taken his wife to Mumbai for labour work. Amol, bother of the appellant, disclosed that he and the appellant were working as labourer for the last 10 years. PW 9 - Shantanu expressed his suspicion about the involvement of Amol and, therefore, Amol was taken to Bagdah Police Station for further inquiry and was arrested. His custody was obtained and was brought to Mumbai. Various places where the appellant was working were visited, however, no trace of the appellant could be found. On 18/8/2005, the Crime Branch, Unit III, gave intimation to the Sion Police Station that one

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person named Shamal Dinesh Biswas had been arrested. PW 10 - PI Pande, along with staff, therefore, visited the Crime Branch and brought the appellant to the Sion Police Station. In the presence of panchas the appellant was formally arrested under arrest panchanama at Exh. 33. The appellant had been arrested by the Crime Branch under arrest panchanama at Exh. 34. Statement of PW 1 - Abdul and PW 3 - Sudhir was recorded, who identified the appellant as the same person who was working with them.

The seized clothes i.e. the clothes of deceased as well as the pieces of cloth with which the deceased was found tied and the sample which was collected from the scene of the incident were forwarded to the C.A. under requisition at Exh. 35. The C.A. reports are at Exhs. 36A, 36B, 36C and 20.

PW 11 - PSI Narayan Pol, who was also attached to the Sion Police Station, had made inquires with all the other labourers who had been employed at the site. Statement of Sanjay was recorded. PW 11 - PSI Pol had accompanied PW 10 - PI Pande in search of the appellant and for learning the identity of the deceased lady. Further to the completion of

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investigation, a charge-sheet against the appellant was filed. Postmortem on the dead body of deceased Madhuri was conducted by PW 6 - Dr. Harish Pathak. PW 6 - Dr. Harish Pathak noticed the following external injuries:-

Ligature mark encircling the neck region completely at and below the level of thyroid cartilage placed horizontally of maximum breath 3 inches. It is deep, grooved, anteriolaterally and less prominent at nape of neck. Evidence of multiple contusion around the neck region, reddish and fresh. All the injuries were anti mortem injuries. On internal examination of head brain was congested with hemorrhagic spot present and edematous. On internal examination of thorax, both the lungs were congested and edematous, pettichial hemorrhages present over the inter lobal surface. On internal examination of mouth, tongue was clinched in between teeth.

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According to Dr. Pathak, the probable cause of death was asphyxia due to constriction of neck by strangulation. The postmortem report is at Exh. 20. The case of death certificate is at Exh. 21.

3. On committal of the case to Court of Sessions, trial court vide Exh. 3, framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case examined 11 witnesses. The defence of the appellant was of denial. The trial court, upon appreciation of the evidence of the prosecution witnesses, convicted and sentenced the appellant as afore-stated.

4. In order to effectively deal with the submissions advanced before us by Mr. Arfan Sait, the learned counsel appointed for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

5. Prosecution has examined PW 1 - Abdul Choudhari, who deposes that he was working as a labour contractor who had obtained the labour contract of Manav Seva Sangh at Sion where he was working for the

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last three months. PW 1 - Abdul had employed 22 employees at the site. On 8/7/2005 at about 8.45 p.m. he had received a telephone call from his employee Kaleem Mistry who had informed him that the carpenter

"Prabhat Mandal" had committed murder of his wife. PW 1 - Abdul, therefore, informed him that nobody should touch the dead body and PW 1 - Abdul would visit the scene of the incident. Accordingly, PW 1 - Abdul proceeded to the scene of the incident, where he met Kaleem Mistry. On going to the first floor to the room occupied by the appellant, he noticed the wife of the appellant dead with her hands and feet tied. A piece of cloth was tied around her neck and a gag had been put in her mouth. PW 1 - Abdul thereafter proceeded to the police station and informed the police about the incident. Subsequently, his report came to be scribed at Exh. 10. PW 1 - Abdul states that he had disclosed the name of the appellant as Prabhat Mandal, but subsequently learnt that the name of the appellant was Shamal Biswas. He has identified the appellant as the same person i.e. Prabhat Mandal @ Shamal Biswas. In cross-examination, he has admitted that the dead body was noticed near the cupboard in the open room. He has admitted that he had maintained a register of the attendance of the employees. He has admitted that he had not provided identity cards to his employees. He has admitted that the attendance register had been seized by

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the police. He has admitted that he had disclosed the name of the appellant as Prabhat Mandal as per the attendance card.

6. The prosecution has examined PW 3 - Sudhir. Since PW 3 - Sudhir could speak only in Bengali, at the request of the prosecution, trial judge had appointed his son as a translator. PW 3 - Sudhir deposes that he knew appellant as Prabhat Mandal. He has admitted that he had identified the appellant as Prabhat Mandal whose real name was disclosed as Shamal before the police. On 7/7/2005 the appellant and his wife had gone for a walk at about 9 a.m. At about 7 p.m. they returned to the room, where they were residing in the Manav Seva Sangh building. Thereafter the wife of the appellant prepared fish curry and rice. PW 3 - Sudhir and others had their dinner and thereafter all the labourers started playing cards in the said room. At about 11 p.m. the appellant had gone for sleeping and Sudhir and others had also retired to sleep. Sudhir got up early in the morning on the next day and prepared for going to work. He accordingly gave a call to the appellant to come for work but the appellant did not respond. Sudhir along with other labourers, therefore, went to the room of the appellant and noticed that the appellant was not present in the room. They tried to wakeup the wife of the appellant and then noticed that her feet and hands

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had been tied. A cloth was tied around her neck. There were no clothes on the dead body. Thereafter the contractor was informed. PW 3 - Sudhir has identified the appellant Shamal Biswas as the same Prabhat Mandal who was working at the site.

7. In cross-examination, he has admitted that his statement had been recorded by the police in the Sion Police Station. He has admitted that at the time of recording of his statement, he was narrating the statement in Bengali, while the labour Basin Mandal was translating the statement from Bengali into Hindi. He has admitted that the statement of Basin Mandal was not recorded separately. He has denied the suggestion that he has falsely identified the appellant as the same Prabhat Mandal who was working at the site and who was the husband of deceased Madhuri.

8. This witness has not been cross-examined in respect of his evidence that the deceased was last seen alive in the company of the accused at about 11 p.m. On the next day in the morning, deceased was found dead and the appellant was not found in his room. The appellant had absconded since the next day till he was ultimately arrested by the Crime Branch. The evidence of this witness, therefore, goes virtually

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unchallenged that the deceased was last seen in the company of the appellant.

9. Prosecution has also examined PW 9 - Shantanu, brother of deceased Madhuri. PW 9 - Shantanu deposes that Madhuri was his elder sister, who was married to the appellant in 2002. He has identified the appellant as the same person to whom his sister Madhuri was married. After 3 to 4 months of the marriage, the appellant came to Mumbai for working at the construction site. He further deposes that his sister used to complain that the appellant was harassing her when the appellant was residing in his house in West Bengal. According to PW 9 - Shantanu, Madhuri had complained that the appellant had once administered poison to her. He further deposes that the appellant had left with Madhuri on 1/7/2005 for working at the construction site in Mumbai. He thereafter deposes about arrival of the police and then pointing out the village and the house of the appellant. In cross-examination, he has admitted that Madhuri was married to the appellant on 24/4/2002 at Bagdah. He has admitted that his statement was recorded at Bagdah. Omission has been elicited that he had not stated in his previous statement that he had learnt that the appellant was working as a labourer at the construction site of a building. Omission

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has also been elicited that he had not stated in his previous statement that the appellant had come to Mumbai for working at the construction site. Omission is also elicited that he had not stated that the appellant used to harass Madhuri or that Madhuri had complained that the appellant had administered poison to her. He has admitted that he had identified the dead body as the dead body of Madhuri. In cross-examination he was asked about the register and he has admitted that the police had shown him the register where the name of Prabhat Mandal was written denoting that he was an employee.

10. The learned counsel for the appellant has urged before us, (i) that there is no reliable evidence that the appellant is the same Prabhat Mandal who was working at the construction site, (ii) the evidence of PW 3 - Sudhir has been translated by his son who was actively involved in the investigation and (iii) that since the place where the appellant and deceased were residing was an open room which had been converted into a room, apart from the appellant any other person could have committed the crime. The learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in State of Rajasthan vs. Darshan Singh alias Darshan Lal [2012 Cr.L.J. 2908]. The learned APP has supported the

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findings arrived at by the trial court.

11. It is true that the appellant, it appears, had disclosed his name as Prabhat Mandal. However, the appellant has been identified in court by PW 1 - Abdul Choudhari as the same Prabhat Mandal, who had been employed. The appellant had been identified by PW 9 - Shantanu as the same person to whom his sister Madhuri was married. Thus, the prosecution has conclusively established that the appellant is the same person who was working at the construction site under the name of Prabhat Mandal. The evidence of the Investigating Officer certainly indicates that the services of the son of PW 3 - Sudhir were utilized for translating the statement of the witnesses who could only speak in Bengali. PW 3 - Sudhir had no personal interest and, therefore, cannot be called as an interested witness. An interested witness would be one who had some direct or indirect interest in the outcome of the trial. PW 3 - Sudhir was a labour contractor who had employed the appellant and to whom the death of wife of the appellant was informed. By no stretch of imagination can he be dubbed as an interested witness. The evidence of PW 3 - Sudhir, therefore, would not be vitiated merely because the evidence was translated into the language of the court by his son. Similarly, the evidence of PW 3 -

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Sudhir would not be vitiated as oath had not been administered to his son when translating the evidence. We find that the evidence of PW 3 - Sudhir is reliable and establishes beyond reasonable doubt that deceased Madhuri was last seen alive in the company of the appellant.

12. The Supreme Court in State of Rajasthan vs. Darshan Singh alias Darshan Lal had found that the evidence of the deaf and dumb witness was interpreted by her father when no attempt had been made to ask the witness to give her evidence in writing. The Supreme Court additionally found that no oath had been administered. In that background, therefore, the Supreme Court declined to place any reliance on the testimony of the interpreter. The ratio of the judgment of the Supreme Court, therefore, in our opinion, would not be applicable to the facts of the present case.

13. The appellant was residing along with his wife at the construction site in a room which was converted by placing the cupboards. Though the said room did not have a door, in the sense it was accessible to others, yet the appellant and deceased Madhuri were residing together in that room. No other person would have any animus at killing deceased Madhuri. The deceased was last seen alive in the company of the appellant

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and thereafter the appellant had absconded. The appellant has not offered any explanation as to how his wife had died a homicidal death. This would obviously be an additional circumstance. According to us, therefore, the chain of the circumstances is so complete that it excludes every other hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. We have no hesitation in arriving at the conclusion that it was the appellant and the appellant alone who had committed murder of deceased Madhuri. The appellant, in our opinion, therefore, has been rightly convicted by the trial court. The appeal filed by the appellant, which is sans merit, therefore, deserves to be dismissed.

14. Accordingly, Criminal Appeal No. 489 of 2007 is dismissed, confirming the conviction and sentence of the appellant. Fees payable to the learned counsel appointed for the appellant quantified at Rs.5000/-.

Copy of this judgment be sent to the appellant who is undergoing his sentence in jail.

(A. S. GADKARI,J.) (P. V. HARDAS,J.)