State of West Bengal
Vs. Dipak Halder & ANR.  INSC 1015 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.543 OF 2004 State
of West Bengal ....Appellant Versus Dipak Halder & Anr. ....Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Calcutta High
Court directing acquittal of the three appellants before it who are described
hereinafter as accused no. 1, 2 and 3 respectively. Respondent No.1-Dipak
Halder was married to one Rimu (hereinafter referred to as the `deceased').
Alleging that deceased Rimu was killed by respondent No.1 and that she was
tortured, for non-fulfillment of dowry on demand, prosecution was launched.
Carge under Section 498A read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as the `Code') was framed against all the three
accused persons. Charge under Section 302, IPC was framed against respondent
No.1, Dipak Halder while charge under Section 302 read with Section 109, IPC
was framed against other two accused persons.
version in an outset is as follows :
The deceased Rimu,
daughter of Bimalendu Ganguly, was married to accused Dipak Halder on
18.2.1986. Bimalendu failed to pay the agreed dowry amount of Rs.10,000/- on
the date of marriage. Although the other articles which he agreed to give by
way of marriage gift were duly given.
Due to non-payment of
dowry money of Rs.10,000/-, the bride Rimu had to face ill treatment and
torture at the hands of her husband Dipak, her mother - in-law Dipali and also
her brother-in-law Pradip. It is alleged that after the marriage Rimu was
physically tortured and she was often denied food. The ill treatment and
torture, within a short time of marriage compelled the victim girl to return to
her father's place along with her husband. On that occasion, the victim Rimu
with her husband Dipak stayed for 3 weeks in the-house of Bimalendu Ganguly
(P.W.1), the father of the victim. After 3 weeks Rimu was taken back to her
in-laws place by her husband. At that time Dipak assured her that there would
be no further torture. Again Rimu had to take shelter in her father's place. On
that occasion a diary was lodged at the local P.S. by her husband who also
accompanied Rimu, to her father's place, and stayed there for sometime with the
Victim. This time, she and her husband, started living in the house of Tejendra
Nath Bose (P.W. 12), a well wisher of the family, till they got an accommodation,
at a nearby place. In this way after 3 months they shifted to a flat of Nazir
Bagan Lane within Kasba P.S. At the time Rimu was pregnant and subsequently she
gave birth to a daughter on 10th of December 1986. After she returned home,
mental torture on her which gradually took shape of physical torture started.
It is further alleged that accused Dipak was seen agitated, some times became
violent whenever he used to go to his own house at Tanu Pukur and met his
mother. The matter reached its climax on 25th October, 1987 when the victim
wanted money for Bhratri Ditia. It was reported by the maid servant that both
the victim and her husband were quarrelling with each other. Half an hour after
that some young boys of the locality came running and reported that Rimu had
been burnt. Getting this information, the wife of the informant rushed to the
spot. Even at that time she was abused and insulted by her husband Dipak before
the local people. Rimu was taken to the hospital by the local people in the car
of Mrs. Binita Dhar. In spite of request, her husband Dipak refused to
accompany the victim when she was taken to the hospital. On the next day, the
victim succumbed to her injuries.
Charge under Section
302 IPC was framed against accused Dipak Haldar for causing the death of the
victim Rimu. The other two, Dipali, the mother of the principal accused Dipak
and his brother Prodip were charged under Section 302 read with Section 109 IPC
for abetting the murder. All the three accused were also charged under Section
498-A read with Section 34 IPC. The trial proceeded when the accused pleaded
not guilty to such charge.
In order to bring
home the charge, the prosecution in all examined 46 witnesses. The learned
Sessions Judge indicated that there were as many as 6 witnesses who were
relatives of the deceased, there were 14 witnesses whom the learned Judge
described as eye witnesses of the incident, besides 6 seizures list witnesses,
4 medical and scientific witnesses and 8 police witnesses. Regarding the
offence punishable under Section 498A IPC, the learned Judge relied on the
evidence of the parents and brother of the victim who have been examined as
PWs. 1 to 3. Besides, he heavily relied on a G.D. Entry Ext.30 stated to the
lodged by the accused Dipak Halder and also Ext.4 a counter part of pay in slip
of Indian Bank which the learned Judge in the judgment has described as bank
draft. He also relied on the evidence of Soma Ganguly (PW.4), the sister of the
deceased and Dipti Dutta Roy (PW 19) a resident of Nazir Began and a close
neighbour of the place where the deceased used to reside with her husband
before her death. The learned Judge also considered the statement made by the
accused Dipak on being examined under Section 313 Cr.P.C. admitting that often
he created pressure upon the deceased for cooking various items of food.
Regarding the charge of murder against the principal accused Dipak Halder, the
learned Judge first of all relied on the background of the incident, as
revealed through the evidence of the prosecution witnesses that in the morning
of 25.10.1987, the deceased Rimu paid Rs.100/- towards the cost of Bhaiphota by
going to her father's house without the consent of her husband. For this
purpose, he has placed his reliance on the evidence of her parents and brother
and sisters and also on the evidence of the maid servant of the house Shibani
He also placed
reliance on the evidence of Rita Bose (PW 27), a resident of Nazir Bagan who
met victim Rimu in the morning of 25.10.1987 at the sweet meat shop where Rimu
reported to her that she made a contribution of Rs.100/- without the knowledge
of her husband for which she might punished. Coupled with this, the learned
Judge also considered some other circumstances like (i) the wearing apparels of
the victim contained smell of kerosene oil and the stove of the house did not
burst, (ii) there was quarrel between the couple in the night previous to the
incident. Even the quarrel was going on immediately before the fire, (iii) the
doors and windows of the house were closed at the time of the fire, (iv) the
post mortem report suggested that Rimu had been assaulted previous to the fire,
(v) deceased Rimu tried to save herself from the hands of the accused Dipak and
for the reason came out of the house and took shelter in the house of Tejender
Narayan Bose (vi) there was no evidence that accused Dipak tried to save
deceased deceased Rimu or raised any alarm, (vii) when the neighbours to put
off the fire accused Dipak was seen hurling abuses to the deceased and her
parents. Considering all these came to a final conclusion that charge under
Section 302 levelled against the principal accused Dipak had been proved beyond
doubt. But at the same time he also came to a further finding that charge under
Section 302 read with Section 109 IPC against the other two accused persons was
not proved as there was no evidence that the other two accused aided or abetted
the accused Dipak to commit the murder. He, however, held that charge under
Section 498A stood proved against all the three accused and passed the order of
conviction and sentence.
6 An appeal was
preferred by the respondents herein questioning correctness of the judgment of
the trial Court holding accused persons guilty. By the impugned judgment, the High
Court accepted the appeal and directed acquittal. The same is in challenge by
the State in the present appeal.
It is to be noted
that in the meantime, accused No.3, Smt. Rupali Halder, has expired. The High
Court held that there was no material to sustain the charge under Section 302
IPC, but held that the circumstances on which prosecution placed reliance did
not present complete chain of circumstances and, therefore, the accused persons
are entitled to acquittal.
State's stand in this
appeal is that the circumstances which were highlighted wee clearly
established. Without even analyzing the circumstances, the High Court came to
an abrupt conclusion that the prosecution has failed to substantiate the
counsel for the respondents supported the judgment.
circumstances which were highlighted by the prosecution and on which the trial
Court placed reliance are as follows:
(a) There is nothing
on record or even reply to question put to Respondent No.1 in examination under
Section 313, Cr.P.C. that he tried to put off the fire and that he made any
inquiry in the hospital as to the condition of his burnt wife. The fact remains
that he was in a position to make appropriate arrangement of treatment of his
wife but he did not do so.
No reason has been
assigned as to why he did not accompany his deceased wife in the hospital
(b) There is nothing
on record that accused Dipak Halder did anything to save the life of his wife
from the fire. There is also nothing that he called the neighbours for help in
such great danger.
(c) Fact remains that
the doors and windows were closed during the fire.
Does it not indicate
that the victim Rimu was not allowed to go out of the house during incident
which was also accompanied by physical assault. The reason of closing the doors
and windows of the house at the time of the incident may only be that the
assailant wanted to assault behind the back of others who might be the witness
of the assault and that the victim could not go out of the house to avoid
(d) The condition of
the burning was so severe that the flashes came out of the bone and such a
position in normal fire is absolutely impossible unless a combustible substance
like kerosene is given to the body at the time of fire.
(e) After a careful
consideration of the facts, circumstantial evidence on record and the attitude
and conduct of the accused persons, it can be held without any hesitation that
the deceased was physically assaulted before fire.
(f) It is apparent
from the report Ext. 19 that there was a smell of kerosene oil on the burnt
saree and blouse of the deceased and that the kerosene stove was in good
condition and there was no sign of busting or any other damage to the kerosene
(g) Besides, the
burnt injury on the person of the victim-deceased there was no other markings
of busting of the stove on any other article in the room even the Dekchi which
contained water was also intact. In the circumstances, the plea of busting, of
stove absolutely fails.
(h) From the evidence
on record both oral and documentary and also the circumstantial evidence and in
consideration of all the probability of the case it appears that deceased Rimu
was in a jolly mood in the morning of the incident. She went to his parents
house and to the sweet meet-shop to purchase sweet, prepared breakfast and
immediately before the incident she took her breakfast so there is scarcely an
possibility of setting fire to herself.
(i) A little fire on
the cover of the T.V. set and also the screen of the doors goes to show that
immediately after the fire deceased Rimu ran here and there and for this fire
set in the cover of the T.V. set and all the screen of the door. Deceased Rimu
tried to save herself from the hands of accused Dipak Haldar and that led her
to go out of the house and take shelter at the house of Tajendra Narayan Bose.
(j) Accused Dipak
Halder sustained minor burnt injuries and that might be considered as he tried
to put out the fire on the cover of the T.V. set.
(k) There is
substantial evidence that when the neighbours were trying to put out the fire,
accused Dipak Halder was then calling names to burnt Rimu Halder and her
parents. Accused Dipak Halder was still inside his room when the neighbours
were making arrangements to take the deceased Rimu at the hospital.
(l) There is no
evidence that the accused Dipak Halder performed any of his duties for the
treatment of his burnt wife. Rather he tried to go underground. All the facts
and circumstances only led to the inevitable conclusion that kerosene oil was
pour down on her body and fire was set to her.
(m) After a careful
consideration of the evidence of the witness and after perusal of admission
register it appears that the admission register commenced from 1st November,
1987 and it has not been made clear how the name of accused Dipak Halder who
was alleged to have been admitted on 25.10.1987 entered into admission register
of 1.11.1987. This is absolutely absurd. And that the defence has not been able
to prove as to how this irregularity occurred.
(n) The alleged
admission of accused Dipak Halder at the Nursing Home, on 25.10.1987 is not
beyond suspicion and that there is nothing as to the nature of treatment, given
to him. The admission has not been proved. The doctor who made the alleged
treatment has not been examined. In the result, the plea that the accused Dipak
Halder could not make arrangement of treatment of the deceased due to his
admission in the Nursing Home of his own injuries fails.
(o) No reason has
been assigned as to why accused Dipak Halder did not explain in his examination
under Section 313 Cr.P.C. as to how fire occurred. No reason has been explained
as to what led the deceased to come out of the house and seek shelter at the
varandah of others.
(p) There is not a
single evidence that accused Dipak Halder made any attempt to put off the fire
of his wife. Even in the examination under Section 313, Cr.P.C. he does not say
that he tried to put off the fire. On the contrary there is sufficient circumstantial
evidence that accused Dipak Halder resisted the deceased from going out of the
house to save her life. The subsequent conduct of the accused Dipak Halder by
calling names to the deceased and her parents was sufficient substantive
evidence to prove the charge under Section 302 IPC, beyond all reasonable doubt
against accused Dipak Halder.
a case based on circumstantial evidence, the Court is required to consider
whether the cumulative effect of all the circumstances, lead to a conclusion that
the same was a case of murder and the accused was responsible for such murder.
A conviction can be based on circumstantial evidence if it is of such a
character that the same is wholly inconsistent with the innocence of the
accused and is consistent only with his guilt. The incriminating circumstances
that are being used against the accused must be such as to lead only to a
hypothesis to reasonably exclude every possibility of his innocence. To put it
differently, the Court should find out whether the crime was committed by the
accused and the circumstances proved formed themselves into a complete chain,
which clearly points to the guilt of the accused. If on the other hand, the
circumstances proved against the accused are consistent either with the innocence
of the accused or raise a reasonable doubt about the way the prosecution has
alleged the offence is committed, the accused would be entitled to the benefit
the instant case, apart from the fact that the accused did not make an effort
to save the deceased but was shown to have been abusing the deceased and his
relatives, tried to prove his innocence by manipulating records of a nursing
home. The obvious attempt was to show that he could not have looked after the
treatment of the wife as he himself was undergoing treatment. Several other
factors throw considerable light relating to the absence of any material to
show that a stove had burst which resulted in causing injuries on the body of
the deceased. Unfortunately, the High Court did not even analyse the
circumstances but came to an abrupt conclusion that the circumstances do not
constitute a complete chain.
noted above, the circumstances point to only one conclusion, i.e. guilt of the
accused-respondent no.1. The judgment of the High Court impugned in this appeal
is set aside and that of the trial Court is restored.
The respondent no.1
shall surrender to custody forthwith to serve remainder of sentence if any.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)