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2009 DIGILAW 194 (CAL)

Ranjit Majumder v. Bhupati Rajan Karmakar

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment :- P.S. DATTA, J. (1) This appeal is directed at the instance of the defacto complainant against the judgment and order of acquittal dated 6th May 2006 passed by the learned Additional Sessions Judge, Fast Track Court No. IV at Krishnagore, Nadia in SC No. 75(2)/05 corresponding to ST No. 15(5)/05. The five opposite parties herein were charged by the learned Judge in the court below u/s 498A/306/34 IPC. The petitioner/defacto complainant whose daughter was married to one Ram Karmakar (not the accused) torture and assault on demand of money by the present opposite parties/accused persons who included father-in-law, mother-in-law, sister-in-law and brother-in-law in the matrimonial home on demand of money. The husband of the victim would work at a different place and would came to his house from time to time. On 17.6.02 the defacto complainants wife Smt. Charubala Mazumder had gone to the matrimonial home of her daughter to bring her to his house but the accused persons in presence of his wife assaulted his daughter and refused to send his daughter to his home unless a sum of Rs. 30,000/- was paid. Accordingly Charubala returned home disappointed and on the next day information was received by the defacto complainant that being unable to bear the torture his daughter Kakali died. He immediately rushed to the matrimonial home of his daughter and found the dead body lying on the veranda. This was the FIR being no. 112/02 dated 18.6.2002 registered against the opposite parties u/s 498A/306/34 IPC and upon completion of investigation charge sheet was submitted against them under the aforesaid ground of the law. (2) The learned Judge upon conclusion of trial recorded an order of acquittal and against this order of acquittal the defacto complainant has preferred this criminal misappreciation of evidence and consequently a total miscarriage of justice. (3) It is well-settled principle of law that an order of acquittal should not be interfered with unless absolutely called for, and power of revisional court has been laid down in the catena of decisions of the Supreme Court. The decisions in K. Chinnaswami Reddy Vs. State of Andhra Pradesh reported in AIR 1962 SC 1788 , Bindeswari Prasad Singh Vs. State of Behar reported in 2002 SCC (Cri) 1448 and Ram Briksh Singh and Ors. Vs. Ambika Yadav and Anr. reported in 2004 SCC (Cri) 2009 may be cited by way of ready reference. The decisions in K. Chinnaswami Reddy Vs. State of Andhra Pradesh reported in AIR 1962 SC 1788 , Bindeswari Prasad Singh Vs. State of Behar reported in 2002 SCC (Cri) 1448 and Ram Briksh Singh and Ors. Vs. Ambika Yadav and Anr. reported in 2004 SCC (Cri) 2009 may be cited by way of ready reference. While saying so, it has to be said further that if there has been no appreciation of evidence, or insignificant piece of evidence have been given undue weightage over substantive evidence and where a court overlooks to consider substantive evidence then in an exceptional circumstances order of acquittal can only be interfered with. (4) Bearing in mind this principle let us proceed to have control of evidence of the witnesses. PW 1, the defacto complainant has said in his evidence as follows : "During living of my daughter at her matrimonial home the accused persons used to inflict torture upon my daughter Kakali both mentally and physically over the issue of demand of money. My daughter informed the incident of torture and demand of persons 5 are present in court today (identified). My daughter has one issue who born after 2 years of her marriage. The male child is in my custody. I failed to meet the demand of money of the accused persons due to my poverty. On 17.6.2002 my wife had been to the matrimonial home of my daughter for bringing my daughter to my house because of some offering of my nati in a Mela due to Sitala Puja (Melate Natir Sitala Pujar Manat Chilo). My wife came back alone to my house at about evening and I came to know from my wife that the accused persons of this case i.e. "Sasuri and Nanads" have abused my wife by using filthy languages and claimed Rs. 30,000/- from my daughter and also they assaulted my daughter Kakali. The accused persons refused to send my daughter with my wife. On the following day I was informed by the club members of Bishnupur that my daughter has expired." (5) PW 2, Smt. Charubala Mazumder, wife of PW 1 gives the following evidence : "After marriage my daughter used to visit my house and informed me that her mother-in-law, namely Nirupama Karmakar, Nanad Jayanti Karmakar, Nanad Mayla, Debar Lakham Karmakar and father-in-law Bhupati Karmakar have demanded Rs. 30,000/-. We failed to meet the demand. 30,000/-. We failed to meet the demand. Accordingly my daughter was the victim of torture by them. The accused persons used to assault my daughter and stop provide food to my daughter. On the last part of Baisakh on the previous day of the death of my daughter I had been to her matrimonial home to bring my daughter due asked mother-in-law of my daughter as to whether she will send my daughter with me but she refused. My daughter told her mother-in-law that she will go today and remain there only one day. Then her mother-in-law said "Lajja Kore Na. Keno Jabi". Then she assaulted my daughter. Her mother-in-law and Nanad told that they will allow my daughter to go to her fathers house on condition that she has to bring Rs. 30,000/-from her father. Then I came back to my house and informed the incident to my husband and my son. On the following day at about 2.30 p.m. I heard that my daughter has expired." (6) PW 3, Mintu Mazumder says "due to Sitala Puja occasion my mother had been to bring my younger sister from her matrimonial home because we had a offering to Sitala Goddes in respect of male child of my younger sister. Mother-inlaw and Nanads of my younger sister refused to send my sister with my mother and demanded of Rs. 30,000/-. Then Nanads and mother-in-law started to assault my sister by catching heap of her heir. As a result my mother came back form their house in weeping condition. My mother informed this incident to my father and on the following day at about 2.45 p.m. we received information from local club member of the matrimonial village that my sister has expired. During 3 years the accused persons tortured my sister both mentally and physically over their demand of Rs. Rs. 30,000/-they will not accept my sister as their daughter-in-law." (7) PW 4, Mira Sarkar, a relative of PW 1 said that Kakali Karmakar (deceased) informed her about the incident of torture by her mother-in-law and nanods to place their demand of Rs. 30,000/-. She further says that Kakali informed her about this incident as she was her baudi. Similar is the evidence of Chandana Pal, a neighbour of PW 1. Similar was also the evidence of PW 6, Sabita Sutradhar, a man of the locality of PW 1. 30,000/-. She further says that Kakali informed her about this incident as she was her baudi. Similar is the evidence of Chandana Pal, a neighbour of PW 1. Similar was also the evidence of PW 6, Sabita Sutradhar, a man of the locality of PW 1. Evidence of PW 7, Ramani Das does not merit any consideration because she gives almost hearsay evidence. (8) PW 8, Sukumar Mazumder gives the following evidence : "I have heard from Kakali that mother-in-law, father-in-law, Nanads and Devor did not well behave to Kakali. Kakali had been to her fathers house and I was called by the father of Kakali and thereafter I came to the father of Kakali and I heard from Kakali that over the issue of demand of money by these persons. She was the victim of torture physically and mentally. My elder brother i.e. father of Kakali failed to fulfil the demand of the accused persons. I heard this incident many times. Lastly on 17/12.6.2002 I received information that Kakali has expired. I had been to the inthe accused persons. I also found huge persons gathered there. I heard from the mother of Kakali that on the previous day her mother had been to the in-laws house of Kakali due to mela but they refused to send Kakali with her mother as they failed to fulfil the demand of money. I also heard in presence of her mother Kakali was physically assaulted by her mother-in-law, Nanads by catching of her heir. I heard it from the mother of Kakali." (9) PW 9, Nabaranga Das corroborates PW 1 and says as follows : "The accused persons demanded money as parents of Kakali failed to fulfil their demand and accordingly mother-in-law, Nanad, Devar of Kakali ill behaved with her. Kakali has expired I know it. On the previous day of death of Kakali mother of Kakali had been to the matrimonial home of her daughter and on the following day she was returning home and she was weeping and I asked her about the reason of weeping. On being asked by me mother of Kakali told me that she had been to bring her daughter and they demanded dowry money and refused to send her daughter with her. On being asked by me mother of Kakali told me that she had been to bring her daughter and they demanded dowry money and refused to send her daughter with her. They also used filthy languages toward the mother of Kakali." (10) PW 10, Manas Dasgupta was declared hostile and he was cross-examined by the prosecution. PW 11 is a constable who took the dead body to the morgue for the purpose of post-mortem examination. PW 12, Bhushan Chandra Mandal is the IO of on the body of the deceased. Cross examination of the doctor was declined by the defence and the doctor says that the death was due to the effects of hanging which was ante mortem and suicidal in nature. In the context of the aforesaid evidence of the witnesses the learned Judge in the court below rendered an order of acquittal on the following grounds (a) the witness who deposed on behalf of the prosecution were all relatives of PW 1 and no independent witness was examined (b) the incident of torture was not reported to the appropriate authority by PW 1 or by PW 2 or by PW 3 (c) there was no convincing evidence forthcoming that the mother of the victim had been to the matrimonial home of the deceased to bring the deceased to her home (d) the incident of torture was not informed or reported to anybody within a period of 3 years. (11) Fairly speaking these are the reasons for recording an order of acquittal. The learned Advocate for the petitioner raised a volley of questions which have not been touched upon by the learned Trial Court. It is argued that the law is well-settled that in a case u/s 498A/306 or u/s 304B of the IPC it is the evidence of the witnesses on behalf of the deceaseds parents and relatives that count much. A man of the village may not be concerned with the domestic affair of a house wife who died an unnatural death in her matrimonial home. It is not a case that not a period of 3 years from her marriage and unquestionably there carries a presumption u/s 113A. The learned Judged did not consider as to under what circumstances a house wife had to face an unnatural death within 3 years of her marriage. It is not a case that not a period of 3 years from her marriage and unquestionably there carries a presumption u/s 113A. The learned Judged did not consider as to under what circumstances a house wife had to face an unnatural death within 3 years of her marriage. It is not that the story given by PW 1, PW 2, PW 3 and all other witnesses in support of the prosecution is a story told before the court for the first time. The FIR brings out the allegation that sometime after marriage on the demand of exacting more money the members of the matrimonial home of the deceased used to torture her physically and mentally. There was demand of payment of Rs. 30,000/-which was renewed on 17.6.2002 when Charubala (PW 2) had been to the matrimonial home of his daughter to bring his daughter in connection with a local ritual and in presence of PW 2 his daughter was beaten and on the next day the victim died. PW 2 has testified to what has been stated in the FIR. Non-reporting of the incident of torture to the members of the village or Gram Panchayat during the lifetime of PW 2s daughter in her matrimonial home cannot signify that the evidence on that score has to be disbelieved. In domestic affairs no outsider is interested to know what is going on in the family and the person who suffers also does not report for variety of reasons to any person of the locality including the Panchayat. Therefore, non-reporting to the Panchayat or appropriate authority of the village cannot be the ground of acquittal and so far as the visit of the PW 2 to the matrimonial house of the victim on such evidence. It is argued that the victim died within three years of her marriage. Convincing evidence was led to the effect that there was no consistent demand of money and such money was not paid. The victim was subjected to constant and continuous torture. The victim reported the incident of torture to her parents and independent evidence was led in support of the statement of the victims parents and it is a silly reasoning that the evidence of the parents of he victim deserves rejection simply because they were the parents. The victim was subjected to constant and continuous torture. The victim reported the incident of torture to her parents and independent evidence was led in support of the statement of the victims parents and it is a silly reasoning that the evidence of the parents of he victim deserves rejection simply because they were the parents. It is, therefore, argued that the defence did not put forward any explanation as to under what circumstances the victim died an unnatural death in her matrimonial home. It is submitted further that there has not been any appreciation of the evidence of he witnesses at all and the learned Judge harped on some trifling and insignificant factors which at all do not deserve any consideration. Having perused the material of the witnesses and having heard the learned Counsel for the petitioner it appears to me that the grounds of acquittal are only three in number namely (a) incident of torture was not reported to the local people within a period of three years (b) no independent witness was examined and (c) there was no convincing evidence forthcoming that the mother of the victim had been to the matrimonial home of the deceased to bring the deceased to her home on the day before the day when the victim commit suicide. In fact I fail to persuade myself to agree with this reasoning. Evidence was led substantively to the effect that the mother of the victim had been to the matrimonial home of her daughter and her evidence to that effect has been narrated in details and corroborated by the other witnesses. Learned Trial Court did not assign any reason as to why evidence of PW 4, PW 8 and PW 9 could be disbelieved. The learned Trial Court did not analyze the evidence of PW 1, PW 2, PW 3, PW 4, PW 8 and PW 9. Mere ground that incident of torture was not reported earlier to any local authority is not ground at all. The learned Judge has not assigned any reason why evidence of he parents of the victim and of PW 3 should be disbelieved. Therefore there has not been any appreciation of evidence at all. In other words insignificant piece of evidence has been given undue weightage without analyzing substantive evidence. The learned Judge has not assigned any reason why evidence of he parents of the victim and of PW 3 should be disbelieved. Therefore there has not been any appreciation of evidence at all. In other words insignificant piece of evidence has been given undue weightage without analyzing substantive evidence. (12) Had the learned Judge discussed the evidence and analyzed the same in his own way it would have been one thing; but rejection of the prosecution evidence on the ground that the village authority was not reported of the incident and independent witness has not been examined cannot be said to be an act of appreciation of evidence. (13) Accordingly, the application deserves acceptance. The judgment and order of the learned Judge is set aside. The learned Judge will hear argument afresh and pass judgment in accordance with law. (14) A copy of the judgment shall be sent to the learned Additional Sessions Judge, 4th Fast Track Court, Krishnagore at Nadia for information and necessary action.