REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge 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  

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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.  

2. Prosecution 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  

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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  

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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  

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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 Shee (PW7).  

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  

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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.

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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 allegations.         

3. Learned counsel for the respondents supported the judgment.

4. The circumstances which were highlighted by the prosecution and on  

which the trial Court placed reliance are as follows:  

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(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 alongwith neighbours.    

(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 assault.

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(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 stove.  

(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.

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(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  

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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,  

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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.  

5. In 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  

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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 of doubt.

6. In 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  

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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.                      

7. As 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.          

8. The appeal is allowed to the aforesaid extent.

...................................................J. (Dr. ARIJIT PASAYAT)

……............................................J. (D.K. JAIN)

……..............................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi; May 08, 2009   

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