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2010 DIGILAW 511 (CAL)

Ratan Das @ Chanda v. The State of West Bengal

2010-05-11

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2010
JUDGMENT: KALIDAS MUKHERJEE, J. 1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court, 1st Court, Berhampur, Murshidabad in Sessions Trial No. 3 of May, 2004 corresponding to Sessions serial No. 825 of 2003 sentencing the appellant to suffer imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer further imprisonment for five months under Section 302 I.P.C. 2. The case of the prosecution, in short, is that one Gopal Chandra Sarkar lodged an F.I.R. alleging that his daughter Gouri Das, aged 19 years was married with Ratan Das on 18th Ashar, 1410 B.S. according to Hindu rites and ceremonies. At the time of marriage different articles were gifted. After marriage Gouri Das used to live in her matrimonial home, but, whenever she visited the house of the informant, she used to disclose that her husband was in need of money in connection with his business and her father-in-law and mother-in-law told her to bring money from the informant and in case of failure to make such payment she will have to live in the house of her father for good. 3. It has been alleged that the victim was denied food in her in-laws house and she was subjected to torture. She was even assaulted. Sometimes the victim used to stay in her father’s house. On 29.10.2003 her husband, mother-in-law and father-in-law created pressure upon her for fetching money and it was disclosed by the victim to her parents. On 30.10.2003 the informant came to learn that three accused persons strangled her to death. After reaching there the informant found her dead. The victim was lying on the ‘chowki’ in the room of her husband. 4. After the receipt of the complaint, the Berhampur P.S. Case No. 341 dated 30.10.2003 was started and upon completion of investigation the charge sheet was submitted. 5. Charge was framed against three accused persons under Section 498A/34 and 302/34 I.P.C. The accused persons pleaded not guilty and claimed to be tried. 6. The learned Trial Judge upon consideration of the materials on record was pleased to acquit the father-in-law and mother-in-law of the victim of the charges framed against them. But the learned Trial Judge recorded the conviction and sentence under Section 302 I.P.C. so far as the husband of the victim is concerned. 6. The learned Trial Judge upon consideration of the materials on record was pleased to acquit the father-in-law and mother-in-law of the victim of the charges framed against them. But the learned Trial Judge recorded the conviction and sentence under Section 302 I.P.C. so far as the husband of the victim is concerned. The charge under Section 498A I.P.C. against the appellant having not been proved, he was acquitted of the said charge by the learned Trial Judge. The learned Trial Judge while recording the conviction of the appellant observed that the death of Gouri occurred in the house of the accused and it was not the case of the accused that any outsider came or visited his house before the death of Gouri. The learned Judge also observed that there was no mark of violence on the person of the deceased and no external assault was there. It has been observed that there was no materials on record to show that due to any other ailment the death occurred. The learned Judge thus observed that the death of Gouri took place in her matrimonial home within one year of her marriage otherwise than under normal circumstances. It has been held that Gouri and her husband used to live in the same room. The learned Judge held that the motive of the accused behind the death of Gouri was clear from the fact that his desired demand for Rs.5,000/-for the purpose of starting a business was not fulfilled. The learned Judge ultimately held that from the sequence of events with regard to the cause of death of Gouri it was clear that accused Ratan Das had caused the death of Gouri by throttling and, as such, the learned Trial Judge recorded the conviction and passed the sentence as stated above. 7. Mr. Sanyal appearing for the appellant submits that the Autopsy Surgeon was not sure about the cause of death. It is contended that there were only two black spots around the neck and the prosecution could not prove that there was any motive for committing the murder of Gouri by the appellant, although, motive is not always vital. Mr. Sanyal in this connection has referred to and cited the decisions reported in 2007(1) SCC Cri 118 and 2008(3) SCC (Cri) 39 [ Dinesh Borthakur Vs. State of Assam] paras 29 and 33; 2009(2) C.Cr.LR 593 [Brajeshwar Sarkar Vs. Mr. Sanyal in this connection has referred to and cited the decisions reported in 2007(1) SCC Cri 118 and 2008(3) SCC (Cri) 39 [ Dinesh Borthakur Vs. State of Assam] paras 29 and 33; 2009(2) C.Cr.LR 593 [Brajeshwar Sarkar Vs. State of West Bengal ]. As regards the charge under Section 498A I.P.C. Mr. Sanyal contends that the alleged demand for money cannot come within the definition of dowry as provided in Section 2 of the Dowry Prohibition Act. Mr. Sanyal has referred to and cited the decision reported in 2007(3) SCC (Cri.) 468 [Appasaheb and another Vs. State of Maharashtra]. It is submitted that from the evidence of the witness it would appear that Lagna Patra was prepared at the time of marriage, but, that was not handed over to I.O. to prove that the articles were gifted or that there was demand for money. 8. Mr. Sanyal submits that the doctor was not an expert in Autopsy and his opinion cannot be held to be conclusive. Mr. Sanyal has referred to and cited the decision reported in AIR 1969 Cal 321 [Raj Kishore Vs. The State] para 58. Mr. Sanyal contends that suspicion however strong cannot take the place of proof and in this connection he has referred to and cited the decision reported in 2006 (3) SCC (Cri.) 512 [Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P.]. 9. Mr. Sanyal contends that during the examination of the accused under Section 313 Cr.P.C. the evidence of some P.Ws. were put under one question and because of such jumbled up questions the accused was misled. It is contended that the examination of accused under Section 313 Cr.P.C. was not done according to law and in this connection Mr. Sanyal referred to and cited the decisions reported in 2007(2) SCC (Cri.) 680 [State of M.P. Vs. Mukesh and others] para 21; 2009 (2) C Cr.L.R. (SC) 253 [Inspector of Customs, Akhnoor J & K Vs. Yash Pal & Another]; 2009(3) SCC (Cri.) 82 [Shaikh Maqsood Vs. State of Maharashtra] para 10. Mr. Sanyal further contends that from the circumstances it would appear that none of the accused persons fled away after the incident and it is a circumstance which speaks of the innocence of the accused appellant. 11. Mr. Yash Pal & Another]; 2009(3) SCC (Cri.) 82 [Shaikh Maqsood Vs. State of Maharashtra] para 10. Mr. Sanyal further contends that from the circumstances it would appear that none of the accused persons fled away after the incident and it is a circumstance which speaks of the innocence of the accused appellant. 11. Mr. Mitra appearing on behalf of the State submits that the victim died in the bedroom of her husband and under Section 106 of the Indian Evidence Act the appellant having special knowledge of the facts could not give anyexplanation as to the cause of death of his wife. Mr. Mitra contends that the post mortem report cannot be disbelieved. Mr. Mitra contends that from the evidence of the witnesses it would appear that the victim came to her father’s house one day before the date of incident and no cross-examination was made to the witness on that point. As regards the examination of the accused under Section 313 Cr.P.C. Mr. Mitra submits that the evidence of some witnesses were put under one question and the questions were thus jumbled up. 12. P.W. 1 is the father of the deceased who has stated about the demand for money and ill treatment of the victim in her in-laws house. He has stated that after getting information about the death of his daughter he rushed to the matrimonial home of his daughter and on reaching there he found that his daughter was lying in the house of Ratan Das. He has also stated that he went to the P.S. and lodged the F.I.R. and thereafter seizure was made. 13. P.W. 2 is the neighbour of the deceased who has stated about the torture upon Gouri in her in-laws house. It is in her evidence that he found the dead body of Gouri in her matrimonial home when the dead body was being lifted to a rickshow van by her father-in-law. 14. P.W. 3 is another close-door neighbour of the deceased who went to the house of the accused and found that Gouri was lying dead on the bed. He has stated that after about three months of her marriage Gouri died. 15. P.W. 4 is the constable who carried the dead body to the hospital for post mortem examination. 16. P.W. 5 is the mother of the deceased. He has stated that after about three months of her marriage Gouri died. 15. P.W. 4 is the constable who carried the dead body to the hospital for post mortem examination. 16. P.W. 5 is the mother of the deceased. She has stated about the ill treatment upon Gouri in her in-laws house. It is in her evidence that after getting information she went to the house of the accused and found that Gouri was lying dead in the bedroom of the accused. 17. P.w. 6 and P.W. 7 are the next door neighbours of Gouri. It is in their evidence that on hearing hue and cry they went there and found that Gouri was lying dead in her matrimonial home. 18. P.W. 8 is the witness to the inquest. P.W. 9, P.W. 10 & P.W. 11 did not state anything as to the cause of death of Gouri. P.W. 12 is the scribe of the F.I.R. P.W. 13 is the Police Officer. P.W. 14 is the Deputy Magistrate who held inquest. P.W. 15 is the Doctor who held post mortem examination. P.W. 16 is the I.O. 19. From the judgment of the learned Trial Judge it appears that the charge under Section 498A was disbelieved and the other two accused persons being the father-in-law and mother-in-law were acquitted. The learned Trial Judge convicted the appellant under Section 302 I.P.C. From the evidence on record it appears that the case rests on the circumstantial evidence. Amongst the P.W.s the parents of the victim mostly stated about the ill treatment, torture and the demand for money made by the accused. But, as the charge under Section 498A was disbelieved by the learned Trial Judge and there is no cross appeal to that effect, we are of the considered view that the evidence as to the ill treatment and torture would not lend any support in the proof of the charge under Section 302 I.P.C. 20. As to the charge under Section 302 I.P.C. we are to look into the evidence of the Autopsy Surgeon (P.W. 15) who has noted the following injuries:- “On examination I found bluish discoluration of lips, tongue, nailbeds and both upper and lower limbs, froth coming out from the nose and mouth. No signs of external injury etc., detected excepting two small black spots (bruise) on either side of the thyroid cartilage of the neck. No signs of external injury etc., detected excepting two small black spots (bruise) on either side of the thyroid cartilage of the neck. This kind of injury may also be caused in case of throttling. The colour as detected in course of examination is also due to respiratory (airway) obstruction.” The doctor has further noted as follows:- “This may occur due to asphyxia by strangulation. In my opinion the cause of death was due to acute respiratory (airway) obstruction due to throttling by strangulation and was ante-mortem in nature…………,” In the cross-examination he has stated that there are many grounds for respiratory airway obstruction. He has further stated in his cross-examination that in the post mortem report it is not at all mentioned what kind of throttling was perpetrated or done on the victim. 21. The inquest was held by Deputy Magistrate (P.W. 14) who has noted the following injuries: “In course of inquest examination I find that froth was coming from the nose and some black spots of both sides of the neck” Excepting the black spots on either side of the neck and the nailbeds in both upper and lower lips, there was no other external injury as found in the inquest report and in the report of the Autopsy Surgeon. That apart, froth was coming out of the nose and mouth. The doctor has opined that this kind of injury may occur in case of throttling and in his opinion death was caused due to acute respiratory (airway) obstruction, due to throttling by strangulation being ante-mortem in nature. That apart, it is evident from the testimony of the doctor that froth was coming out from the nose and mouth. There was discolouration of the lips as well as nailbeds (on both upper and lower limbs). These factors, namely, two black spots on either side of the thyroid cartilage, froth coming out of the nose and mouth and nailbeds in both the limbs, irresistibly lead us to the conclusion that force was applied, as a result of which there were asphyxia and it resulted in death. It is, therefore, an asphyxial death due to strangulation. The decision cited by Mr. Sanyal in the case of Brajeswar Sarkar Vs. It is, therefore, an asphyxial death due to strangulation. The decision cited by Mr. Sanyal in the case of Brajeswar Sarkar Vs. State of West Bengal (Supra) in this regard would not come in support of his contention, as in the post mortem report there is no ambiguity or failure to give any opinion as to cause of death. 22. It is, therefore, clear that the victim Gouri Das was murdered in her matrimonial home. Now the question arises as to whether this appellant had any role in the commission of the crime. Mr. Sanyal submits that the accused was not properly examined under Section 313 Cr.P.C. Mr. Sanyal has cited the case of Shaikh Maqsood Vs. State of Maharashtra (Supra) wherein it was held that no question was put to the accused which established that he was the author of the crime and the conviction was set aside. In the case of Inspector of Customs, Akhnoor J & K Vs. Yash Pal & another (Supra) the recovery of the articles were not brought to the notice of the accused while examining him under Section 313 Cr.P.C. and the accused was acquitted. 23. We have gone through the statement of the accused recorded under Section 313 Cr.P.C. Although the evidence of some witnesses were put under one question, we find that all the incriminating evidence were brought to his notice and the accused understood the questions put to him. In another question he answered that his wife suffered from heart disease and she told them off and on that she was feeling pain in her chest. He has also stated that he gave her medicine on that symptom, but, did not get her examined by any doctor. It was suggested to P.W. 1 that Gouri was suffering from heart disease and due to that she died, but, P.W. 1 denied it. It was suggested to mother of the victim (P.W. 5) that her daughter was ill and she was physically unfit and that she died due to cardiac failure, but P.W. 5 denied it. No evidence either oral or documentary was adduced from the defence that the victim was suffering from heart disease or that she was treated by any doctor. In absence of any such evidence it must be held that it was a case of homicide. No evidence either oral or documentary was adduced from the defence that the victim was suffering from heart disease or that she was treated by any doctor. In absence of any such evidence it must be held that it was a case of homicide. The plea of innocence as evident from the cross-examination of P.Ws and the answer given by the accused in the statement under Section 313 Cr.P.C. about the heart disease of the victim and thereupon the contention of natural death, could not in any way raise the probability of happening of the incident in any way other than that as alleged in the F.I.R. The decision cited by Mr. Sanyal could not lend any support to his contentions. 24. It is in evidence that the victim died in the bed room of the accused within one year of her marriage. There is no evidence on record to show that on that fateful night any outsider or any of the relatives of the family of the accused had any access to their house and under such circumstances, it irresistibly leads us to believe that the appellant alone had the role to play in the commission of offence. We are in complete agreement with the contention of Mr. Mitra that when the prosecution adduced strong and clinching circumstantial evidence, it was for the appellant who had special knowledge as to the state of things prevailing on that night in his house to give explanation as to how she died, but, no explanation was given from the defence on that score. Absence of any explanation from the defence is a circumstance which clearly goes against the appellant. 25. Mr. Sanyal submits that the prosecution could not prove the motive behind the offence alleged to have been committed, although motive is not always necessary. In view of the injuries noted by the doctor and the fact that the death having occurred in the bedroom of the accused within one year of the marriage of the victim and the failure of the defence to show even the probability of the incident happening in any other way, we are of the considered view that there are the strong circumstantial evidence of conclusive nature and circumstances are consistent with the guilt of the accused. It is worth mentioning here that, although, the charge under Section 498A I.P.C. was disbelieved by the learned Trial Judge, it is evident from the materials on record that the relation between the victim and the appellant was strained. 26. In view of such strained relation, the factum of the last visit of the victim to the house of her father one day before her death expressing her woes and agonising state of mind having proximity in time is indicative of the guilt of the accused. As there is cogent clinching, circumstantial evidence the question of motive relegates to insignificance in the circumstances of the case. It is also found from the evidence on record that the appellant after the death of his wife, did not send any information to his father-in-law’s house about her death. This abstinence also is not in consonance with ordinary human conduct and it goes against the appellant. 27. In the case of Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P. (Supra) it was held that in case of circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form chain of events as would permit no conclusion other than one of the guilt of the accused. In the case of State of M.P. Vs. Mukesh and others (Supra) it was held that prosecution failed to adduce independent corroborative evidence showing that the accused intentionally aided the main accused and thereby abetted. Mr. Sanyal has cited the case of Raj Kishore Vs. The State (Supra) to show that the evidence of Autopsy Surgeon (P.W. 15) cannot be treated as evidence of expert as the doctor has stated in cross-examination that he is an ENT Specialist. In the case of Raj Kishore it was observed in paragraph 52 as follows:- “52. ………….. Indeed, we have no material in evidence if P.W. 8 Dr. Basak was qualified in medical science to distinguish cadaveric spasm which is not rigor mortis. In his deposition besides saying that he is M.O., Police Case Hospital, he does not even say that he is a medical graduate, far less does he mention his qualifications and experience in anatomy, physiology or surgery. Basak was qualified in medical science to distinguish cadaveric spasm which is not rigor mortis. In his deposition besides saying that he is M.O., Police Case Hospital, he does not even say that he is a medical graduate, far less does he mention his qualifications and experience in anatomy, physiology or surgery. The lawyer for prosecution has not elicited any fact that may show that he is an expert whose opinion will be admissible in evidence under Section 45 of Evidence Act………….” We find that the facts of the aforesaid case are different, inasmuch as, in the instant case the Autopsy Surgeon (P.W. 15) is a qualified doctor. 28. Having regard to the materials on record and after giving anxious consideration to the submissions made by Mr. Sanyal and Mr. Mitra, we are of the considered view that the learned Judge was justified in recording the conviction and sentence under the impugned judgment. Here we find that the learned Judge directed that the convict would suffer R.I. for life and to pay a fine of Rs.5,000/- in default to suffer imprisonment for 5 months. But, he did not mention whether in default of payment of fine the convict would suffer S.I. or R.I. We make it clear that in default of payment of fine the appellant would suffer R.I. for 5 months. 29. There is no ground to interfere with the judgment passed by the learned Trial Judge and the impugned judgment is hereby affirmed. There is no merit in this appeal and the same stands dismissed. 30. It appears that the appellant was granted bail from this Court on 7.2.2005. The appellant is, therefore, is directed to surrender before the learned Trial Court within one month from this date to serve out the sentence, in default the learned Trial Court will proceed in accordance with law to secure the attendance of the appellant for serving out the sentence. 31. Let a copy of this judgment along with the L.C.R. be sent down to the learned Trial Court immediately. 32. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible. I agree.