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2005 DIGILAW 463 (CAL)

DHIREN MONDAL v. STATE OF WEST BENGAL

2005-07-25

ARUN KUMAR BHATTACHARYA, DEBIPRASAD SENGUPTA

body2005
SENGUPTA, J. ( 1 ) PRESENT appeal has been preferred against the judgment and order of conviction and sentence dated 19. 7. 99 passed by the learned Sessions Judge, Malda in Sessions Trial No. 6/99 (Sessions case No. 59 of 1991) thereby convicting the present appellant and one mokshada Mondal under Sections 498a/304b of the Indian Penal Code. The present appellant was sentenced to suffer imprisonment for life and mokshada was sentence to suffer R. I. for 7 years for the offence under section 304b of the Indian Penal Code and no separate sentence was passed under Section 498a of the Indian Penal Code. Since Mokshada died after conviction, the present appeal was preferred by the convict Dhiren mondal. ( 2 ) IT would be relevant and convenient to reproduce, in brief, the factual scenario of the case as highlighted by the prosecution. On the basis of a complaint lodged by one Shibulal Mondal (P. W. 2) on 24. 10. 88 a case was registered with Kaliachak Police Station and it was alleged in the FIR that his youngest daughter Sarathi Mondal, who was married with dhiren Mondal in the last year, was subjected to torture and ill-treatment by her husband Dhiren (present appellant) and mother-in-law Mokshada soon after the marriage. His daughter during her visit to her parental house complained such torture and everytime he consoled his daughter and sent her back to her matrimonial home. Over this issue there was a "salish" in the village in presence of the defacto-complainant and his son-in-law was held responsible for such torture upon his daughter. A few days after the said "salish" during Durga Puja, the informant took. his daughter to his house and after Durga Puja was over, one Friday his son-in-law and his nephew came to his house and took his daughter to her matrimonial home. On the next Sunday night at about 2/2. 30 A. M. , one Bhakti Mondal, cousin of accused Dhiren Mondal came to his village and informed the defacto-complainant that his daughter Sarathi had expired and asked him to go to her matrimonial home immediately. On the next Sunday night at about 2/2. 30 A. M. , one Bhakti Mondal, cousin of accused Dhiren Mondal came to his village and informed the defacto-complainant that his daughter Sarathi had expired and asked him to go to her matrimonial home immediately. Having received such information the informant along with three other persons of his village proceeded to the house of his son-in-law and after reaching there he found his daughter sarathi lying dead on the floor and froth was coming out from her nose, victim Sarathi was then carrying 9 months. It was alleged by the defacto-complainant that his daughter committed suicide by consuming poison due to unbearable torture by her husband and mother-in-law. ( 3 ) ON the basis of the aforesaid complaint, a case was registered with Kaliachak Police Station under Sections 498a/306 IPC against accused husband Dhiren Mondal and mother-in-law Mokshada. On completion of investigation charge-sheet was submitted and the learned trial Judge after considering the materials placed before him framed charge under Sections 498a/304b of the Indian Penal Code against both the accused persons. ( 4 ) TO prove its case prosecution examined as many as 12 witnesses including the doctor and investigating officer of the case. None was examined on behalf of the defence. The defence plea was of innocence and false implication. ( 5 ) IT may be mentioned that including the investigating officer and the doctor 12 P. Ws. were examined and out of them, P. Ws. 5, 6, and 9 were declared hostile. ( 6 ) LET us now examine and analyse the testimony of the witnesses on the anvil of reliability and broad probability. ( 7 ) P. W. 1 Nagendra Nath Mondal is the uncle of victim Sarathi and he deposed that at the time of marriage all items were given excepting h. M. T. wrist watch and one golden 'karanja' and about 6 months after marriage he heard that accused Dhiren and his mother started torturing sarathi both physically and mentally sometimes even by denying food for not giving the said items. Having received such information he along with father of the victim (P. W. 2), P. W. 4 and others went to the house of Dhiren mondal (appellant) and after calling some villagers a "salish" was held and it was decided that they would pay Rs. Having received such information he along with father of the victim (P. W. 2), P. W. 4 and others went to the house of Dhiren mondal (appellant) and after calling some villagers a "salish" was held and it was decided that they would pay Rs. 1,000/- in lieu of wrist watch and 'karanja' and accused Dhiren and his mother agreed to accept the same. He further deposed that after such "salish" before Durga Puja, Sarathi came back to her father's house and after Durga Puja was over, on a friday, Dhiren Mondal sent a person to the house of P. W. 2 and took back sarathi to her matrimonial home. On the following Monday in the morning this witness came to know that Sarathi died by consuming poison. It is in his evidence that victim Sarathi reported to him that her husband and mother-in-law used to torture her for demand of wrist watch and karanja. ( 8 ) P. W. 2, father of the victim, corroborated the evidence of P. W. 1 in all the vital aspects and he further deposed that after receiving the news of death of his daughter Sarathi he went to the house of Dhiren, found his daughter dead and the accused persons were absent. P. W. 3, the brother of the victim, also corroborated P. Ws. 1 and 2 and he also stated that his sister used to complain that her husband and mother-in-law used to torture her for the wrist watch and 'karanja'. He along with his father (P. W. 2), Aswini Mondal and others rushed to the house of Dhiren and found his sister lying dead. They also did not find Dhiren and his mother in their house. P. W. 4 Aswini also corroborated the evidence of p. Ws. 1, 2 and 3 and he also stated that after receiving the information about the death of Sarathi he along with P. Ws. 2 and 3 rushed to the house of Dhiren and found Dhiren and his mother absent and victim Sarathi was lying dead in the room of accused Dhiren. ( 9 ) P. WS. 5 and 6, although they were declared hostile, categorically stated that victim Sarathi died in the house of accused Dhiren Mondal. P. W. 8 acted as the priest in the marriage of Dhiren and Sarathi. P. W. 9 is also a priest by profession. ( 9 ) P. WS. 5 and 6, although they were declared hostile, categorically stated that victim Sarathi died in the house of accused Dhiren Mondal. P. W. 8 acted as the priest in the marriage of Dhiren and Sarathi. P. W. 9 is also a priest by profession. He was declared hostile and he was not an important witness in the present case. P. W. 10 is the autopsy surgeon who held post mortem of the dead body. P. W. 11 is a formal witness who took the dead body to Sadar Hospital for post mortem examination. P. W. 12 was the officer-in-charge of Kaliachak Police Station at the relevant time and he endorsed the case to S. I. , D. N. Pandey for investigation, S. I. D. N. Pandey, investigating officer of the case, could not be examined as he expired, but P. W. 12 had identified recordings made by him since handwriting and signature of S. I. B. N. Pandey were known to him. ( 10 ) ADMITTEDLY there is no eyewitness in the present case and the case is sought to be established by the prosecution from the circumstantial evidence. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and these circumstances must be conclusive in nature. ( 11 ) THE learned Advocate appearing for the appellant submits that the prosecution case, as disclosed in the FIR, do not make out an offence under Section 304b I. P. C. The learned Advocate points out that the story for demand of wrist watch and karanja did not find place in the FIR and il was introduced in Court for the first time. It is submitted by the learned advocates of the appellant that the facts constituting the offence should be narrated at the time of lodging FIR about the offence. In a case under section 304b I. P. C. demand for dowry being one of the basic ingredients of the offence was not mentioned in the FIR which affects the very basis of the prosecution case. But we are unable to accept such contention. It is true that the fact of demanding wrist watch and karanja was not mentioned in the FIR. But we are unable to accept such contention. It is true that the fact of demanding wrist watch and karanja was not mentioned in the FIR. But no hard and fast rule can be laid down that the minute details should always be given in the FIR. In some cases, it depends upon the nature of the person who lodges the FIR and also the circumstances in which such FIR is lodged by the informant. In the present case, the informant is the father of the victim and it is quite natural that receiving the news of death of his daughter, he was so dazed that he could not give all the details in the FIR. But we find that the informant stated in the FIR that whenever the victim used to complain about torture by her husband and mother-in-law, the informant used to console her by saying about his poor financial condition. This clearly indicates that there was demand for dowry by the accused persons, which could not be fulfilled by the informant due to his financial stringency. ( 12 ) THE next argument advanced by the learned Advocate of the appellant is that there is nothing in the evidence to show that the present appellant did anything for subjecting the victim to cruelty or harassment with the demand for dowry "soon before her death". Prosecution is under obligation to show that "soon before her death" the victim was subjected to cruelty and harassment and only in that case presumption under Section 113b of the Evidence Act operates. In support of his contention learned advocate relies upon a judgment of the Hon'ble Supreme Court reported in AIR 1997 SC 1873 (Shamlalv. State of Haryana ). It was held in the said judgment that it is imperative, for invoking the legal presumption under section 113b of the Evidence Act, to prove that "soon before her death" she was subjected to cruelty and harassment. But in our considered view, the said judgment is not applicable in the present case. In the said case the victim was taken by her parents to their house about one and half years before her death. There was nothing in the evidence to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to her parental home and her tragic end. In the said case the victim was taken by her parents to their house about one and half years before her death. There was nothing in the evidence to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to her parental home and her tragic end. But the facts and circumstances are quite different in the present case, where it is evident from the deposition of P. Ws. 1, 2, 3 and 4 that victim Sarathi was taken to her parental house before Durga puja as she was carrying for about 9 months at that time. After Durga Puja was over, she was taken to her matrimonial home by the accused persons on a Friday and on next Sunday, i. e. , within 2 days of her coming back to her matrimonial home, she died by consuming poison. Some sort of torture or harassment was made by the accused person during the period of said two days. Nobody will believe that a lady having a foetus of nine months in her womb would commit suicide without any reason by consuming poison unless circumstances compel her to do so. There is corroborating evidence of P. Ws. 1,3,4 also regarding persistent torture on the victim for demand of wrist watch and karanja. So, in our considered view, there is sufficient evidence to show that the victim was subjected to cruelty and harassment "soon before her death". ( 13 ) ON the same point learned Advocate also relies upon two other judgments of the Hon'ble Apex Court reported in AIR 2002 SC 2531 (Mungeswar Prasad v. State of Bihar) and AIR 2005 SC 970 (State of orissa v. Niranjan Mahapatra ). We have gone through the said judgments and we find that the evidence on record was not dealt with by the Hon'ble apex Court in the said judgments and as such it is not possible for us to deal with the said judgments in the present case. ( 14 ) REFERENCE may be made to the judgment of the Hon'ble Apex court reported in AIR 2004 SC 1731 (Kunhiabdulla v. State of Kerala ). ( 14 ) REFERENCE may be made to the judgment of the Hon'ble Apex court reported in AIR 2004 SC 1731 (Kunhiabdulla v. State of Kerala ). In paragraph 11 of the said judgment, it was held as follows :-"the determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. " ( 15 ) FROM a reading of the said judgment, it is clear that the determination of the period within the meaning of the term "soon before" should be left with the Courts, depending upon facts and circumstances of each case. No straight-jacket formula can be laid down as to what would constitute a period of "soon before" the occurrence. We should keep in mind that in such a case of dowry death, one cannot expect that in all cases there will be eyewitnesses to the incident of torture and ill-treatment soon before the death of the victim. In such cases Court is to decide the point keeping in view the facts and circumstances of each case. From the evidence on record, i. e. , evidence of P. Ws. 1, 2, 3 and 4 as also the subsequent conduct of the accused persons after the incident, we find that the victim was subjected to cruelty and harassment by the accused persons soon before her death, which compelled her to commit suicide by taking poison. ( 16 ) NEXT argument advanced by the learned Advocate of the appellant is that the charge under Section 304b framed against the accused persons, suffers from infirmity inasmuch as two essential ingredients of the offence under Section 304b I. P. C. , i. e. , "within seven years of her marriage" and "soon before her death" are not appearing in the charge framed against the accused persons, which caused serious prejudice to the accused. But such contention of the learned Advocate of the appellant cannot be apcepted by us. It is now well settled that mere error, omission or irregularity in the charge will not invalidate the trial in absence of prejudice to the accused persons. Even the vagueness in the charge will not render the trial illegal if no prejudice is caused to the accused persons. In judging the question of prejudice, the main concern of the Court should be to consider whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given full and fair chance to defend himself. Apart from this, it appears from record that no such objection was raised at any stage of the trial nor the order of framing charge by the learned trial Judge was ever challenged in any higher Court, although he was represented by a lawyer and in such circumstances, it can be concluded that the accused was satisfied and knew what he was being tried for and what was alleged against him and on being satisfied he faced the trial. We are of the view that in such a case it cannot be said that the accused was prejudiced in any way. ( 17 ) IN this regard, it would be pertinent to refer to the judgment of the Hon'ble Apex Court reported in 1993 SCC (Cri) 655 (Kundula Bala balasubramanyam v. State of A. P ). In Paragraph 26 of the said judgment, it was observed by the Hon'ble Supreme Court as follows :-"the role of Courts, under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The Courts are expected to be sensitive in cases involving crime against women. The Courts are expected to be sensitive in cases involving crime against women. " ( 18 ) WE have also gone through the other judgments relied upon by the learned Advocate of the appellant, which are reported in AIR 1999 SC 120 (Hemchand v. State of Haryana); AIR 1998 SC 774 (Meka Ramaswamy v. Dasari Mohan and Others) and AIR 2001 SC 3020 (Sunil Bajaj v. State of m. P. ). After perusing the said judgments, we find that those are not applicable in the present case as the facts and circumstances of the present case are quite different from the judgments referred to above. ( 19 ) IT is argued by the learned Advocate of the appellant that neighbours of the matrimonial home of the victim were not examined and regarding demand fordowry none of the co-villagers was examined. Since the prosecution had not examined any other independent witness, excepting near relations of the deceased, it would not be safe to convict the appellant relying upon the evidence of such witness. This argument of the learned advocate of the appellant also does not appeal to us. Merely because the witnesses are relations of the deceased, their evidence cannot be discharged. It only requires the Court to scrutinise their evidence carefully, which was done by the learned trial Judge in the present case. We have also scrutinised the evidence of P. Ws. 1,2,3 and 4 and we do not find any reason to disbelieve those witnesses. No suggestion was given to any of the witnesses during their cross-examination that there were other persons available and it is, therefore, not possible for us to hold that independent witnesses, though available, were not examined by the prosecution. ( 20 ) MR. Dastoor, learned Advocate appearing for the State and supporting the contention of the learned Advocate of the appellant submits that althogh there is no infirmity in the charge under Section 498a I. P. C. , the charge under Section 304b. I. P. C. suffers from serious infirmity causing serious prejudice to the accused appellant. But we are unable to accept such contention for the reasons, which we have already discussed above. ( 21 ) WE have heard the learned Advocates of the respective parties. We have also perused the judgments of the Hon'ble Apex Court referred to above. In the present case from the evidence of P. Ws. But we are unable to accept such contention for the reasons, which we have already discussed above. ( 21 ) WE have heard the learned Advocates of the respective parties. We have also perused the judgments of the Hon'ble Apex Court referred to above. In the present case from the evidence of P. Ws. 1,2,3, and 4, it becomes clear how there was persistent torture upon the victim for demand of a wrist watch and karanja, how the victim was taken out from her parental house by the accused appellant and within two days thereafter she was found dead in her matrimonial home. Having received the information when the father of the victim along with others rushed to the house of accused they found his daughter lying dead and the accused persons absconded from their house. Even at the time of cremation they were not present in the cremation ground. It is true that absconding by itself may not be a positive circumstances to prove the guilt of the accused, because sometime innocent persons are found to abscond for fear of being falsely implicated in a criminal case. But coupled with other circumstances, which we have already discussed above, the absconding of the appellants assumes importance and significance. In the present case, prosecution has successfully established this circumstance also to connect the present appellant with the crime. ( 22 ) WHERE the death of woman is caused by any burns or bodily injury or occurs otherwise than in normal circumstances within seven years of her marriage and it is shown that she was subjected to cruelty and harassment by husband or by any relative of her husband in connection with any dowry, such death is described as dowry death under Section 304b I. P. C. Under Section 113b of the Evidence Act, the Court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence that soon before her unnatural death, she was subjected to cruelty and harassment. In the present case it is the admitted position that victim Sarathi Mondal died within one year of her marriage in the house of her husband Dhiren Mondal when she was carrying 9 months and it is also in the evidence that she was subjected to torture and ill-treatment in her matrimonial home in an advanced stage of pregnancy. In the present case it is the admitted position that victim Sarathi Mondal died within one year of her marriage in the house of her husband Dhiren Mondal when she was carrying 9 months and it is also in the evidence that she was subjected to torture and ill-treatment in her matrimonial home in an advanced stage of pregnancy. After she was taken to her matrimonial home by the accused persons, during her stay for two days the circumstances in the family must have gone to an extreme situation, which led her to put an end to her life. One added circumstance is that the accused persons absconded immediately after the occurrence from their house and this also clearly proves that this was not a death in normal circumstances. ( 23 ) IN a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning. The motive in the present case, as it is clear from the evidence on record, is the greed for dowry. ( 24 ) IN view of the discussion made above and our analysis of evidence on record, we have no hesitation to hold that the prosecution has successfully established all the circumstances appearing in the evidence against the appellant and the chain of established circumstances is complete. All the established circumstances are consistent only with the hypothesis that it was the appellant, who committed the offence. ( 25 ) NOW the point for consideration is whether the extreme punishment of imprisonment for life is warranted in the present case. There is no doubt that prosecution has successfully proved that the victim died an unnatural death by consuming poison. But at the same time, it is also true that there is no direct evidence connecting the accused with the crime and the present case is based on circumstantial evidence. Keeping in view the judgment of the Hon'ble Supreme Court reported in AIR 1999 SC 120 (Hemchand v. State of Haryana), we think that a sentence of 10 years rigorous imprisonment will meet the ends of justice. We accordingly, while affirming the order of conviction under Sections 498a/304b of the Indian penal Code, reduce the sentence of imprisonment for life to R. I. for 10 years. In the result, the appeal is dismissed subject to the above modification of sentence. We accordingly, while affirming the order of conviction under Sections 498a/304b of the Indian penal Code, reduce the sentence of imprisonment for life to R. I. for 10 years. In the result, the appeal is dismissed subject to the above modification of sentence. The appellant, who is now in jail custody, will serve out the remaining period of sentence.