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2011 DIGILAW 1505 (CAL)

Nilu Alias Lilu Das v. STATE OF WEST BENGAL

2011-12-13

KANCHAN CHAKRABORTY

body2011
JUDGMENT: 1. THIS appeal is directed against the order of conviction and sentence dated 21.03.06 passed by the learned Additional District and Sessions Judge, Fast Track Court, Bolpur, Birbhum in Sessions Trial No. 1/April/2004, corresponding to Sessions Case 181 of 2004, whereby the appellant No. 1, Nilu @ Lilu Das was convicted under Sections 498A and 304B of the Indian Penal Code and other appellants were found guilty for the offence under Section 498A of the Indian Penal Code. 2. LILU @ Nilu Das was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5000/- while the other appellants were sentenced to suffer R. I. for two years and seven months and to pay a fine of Rs.1000/-. The appellant challenged the sustainability of the judgment mainly on the following grounds:- (a) That there was inordinate delay in lodging in the F.I.R. and no plausible explanation was rendered; (b) That the prosecution failed to establish the cause of death of the deceased and there was no evidence whatsoever whether it was a suicidal or homicidal or post mortem or anti mortem; (c) That the learned Court erred in coming to a conclusion that the deceased was subjected to cruelty and her death was a dowry death within the meaning of Section 304B of the Indian Penal Code; (d) That the neighbouring witnesses did not support the prosecution case of torture and that the learned Court failed to take note of the fact that only the neighbouring witness examined, did not support the prosecution case; (e) That the learned Court also failed to take note of the fact that the other appellants have been living in a separate house and there is no direct and indirect evidence for inflicting torture mentally and physically on the deceased by them; (f) The judgement impugned being otherwise bad in law, is not sustainable and is liable to be set aside. 3. A short reference to the factual background of the prosecution case is given below. 3. A short reference to the factual background of the prosecution case is given below. Smt. Kali Dasi (P. W. 1) lodged one F.I.R. with Nanoor Police Station on 03.06.1997 written by Bipod Taran Das alleging therein that the marriage of her sister Tulu Dasi was solemnized with the appellant Nilu @ Lilu Das about a year ago and soon after her marriage, Tulu Dasi was subjected to torture in her matrimonial house both physically and mentally for demand of money from her. On 03.05.1997, upon information from Narayan Das (P. W. 4), Kali Dasi had been to the police station together with Bipod Taran Das and informed the news of death of Tulu Dasi in her matrimonial home. Being so informed from Kali Dasi, Police Officials have been to the spot and sent the dead body in the hospital. Kali Dasi also had been to the house of the appellants and found the dead body of Tulu Dasi with some marks of hanging round her throat. They came to know that Tulu Dasi committed suicide by hanging herself being depressed with the torture upon her by her husband, Nilu @ Lilu Das. On the basis of the said F.I.R., the Nanoor P. S. Case No. 61/97 dated 03.06.97 was registered under Sections 498A/304B I.P.C. The case was investigated into and ultimately, ended in a charge-sheet under Sections 498A/304B I.P.C. The appellants were arrayed to face the charge under Sections 304B and 498A to which they pleaded not guilty and accordingly, the trial commenced. The learned trial Court examined as many as six witnesses and admitted some documents on behalf of the prosecution. Upon consideration of the evidence, oral and documentary, the learned Court found the appellant Nilu @ Lilu Das guilty of the offence under Section 498A and as well as 304B I.P.C while the other appellants were found guilty of offence under Section 498A I.P.C and accordingly, their sentence was recorded by the learned trial Court. The appellants have preferred this appeal on the grounds already stated. 4. THE F.I.R. which has been marked Exhibit 1, shows that after solemnization of the marriage of Tulu Dasi with the appellant Lilu Das, She was subjected to torture, mentally and physically, in her matrimonial house. THEre was a demand for money from the side of the appellants. The appellants have preferred this appeal on the grounds already stated. 4. THE F.I.R. which has been marked Exhibit 1, shows that after solemnization of the marriage of Tulu Dasi with the appellant Lilu Das, She was subjected to torture, mentally and physically, in her matrimonial house. THEre was a demand for money from the side of the appellants. On 03.05.97, Narayan Das informed Kali Dasi, the elder sister of victim that Tulu Dasi died by hanging. Kali Dasi together with Bipadtaran Das had been to the police station hearing the incident and thereafter had been to the matrimonial house of the victim Tulu and found mark of hanging around her throat, THE F.I.R. shows that Kali Dasi came to learn that Tulu committed suicide being depressed with the torture upon her. A careful reading of the FIR (Ext. 1) indicates that the allegations and aspirations of inflicting torture on the victim were not only directed against Nilu but by all his inmates, i.e., appellant Nos. 2 to 6. 5. THE fact that Tulu Dasi committed suicide was not disputed in course of trial. THE post mortem report which was marked as Exhibit-5 shows that the doctor who conducted the post mortem reserved the opinion as to cause of death till receipt of chemical examination report. Chemical Examination Report was marked Exhibit - 7 and it shows that no poison could be detected in the vicera of Tulu Dasi. THE inquest report, which was marked as Exhibit - 3 shows that the Executive Magistrate who conducted inquest reported that Tulu Das had taken poison. 6. BE that as it may, the fact that Tulu Dasi committed suicide was not disputed in the trial Court and her death was found unnatural which was not also disputed. It is admitted position that her marriage with the appellant Nilu @ Lilu had taken place one year prior to her death and that she was found dead in her matrimonial house. In course of trial, six witnesses were examined by the prosecution and, no doubt, the lodger of the F. I. R., Kali Dasi was most vital and important witness. Kali Dasi was examined as P. W. 1. She stated that the marriage of Tulu with the appellant Nilu @ Lilu had taken place about nine years ago and she died one year after her marriage. Initially, she was treated nicely. Kali Dasi was examined as P. W. 1. She stated that the marriage of Tulu with the appellant Nilu @ Lilu had taken place about nine years ago and she died one year after her marriage. Initially, she was treated nicely. The husband and in laws had been torturing her and they did not provide her adequate food. She stated further that she was told to bring money from her paternal house. She stated further that she had been to the matrimonial house of Tulu after being informed about her death and found Tulu lying on the floor with hanging mark around her neck and at that time Tulu was carrying for eight months. She stated also after getting death news, she informed the matter to Bipadtaran Das and Bipadtaran Das informed the matter to the police station. She received the death news at 6 a. m. and reached the matrimonial house of Tulu at 7 a. m. Inquest of the dead body of Tulu was performed in her presence and thereafter she lodged complaint in the Nanoor P. S. which was written by Bipadtaran Das. The complaint was marked as Exhibit-1. 7. MR. Partha Sarathi Bhattacharyya, learned Advocate appearing on behalf of the appellants has contended that the F.I.R. was lodged on 03.06.1997, i. e., a month after the death of Tulu. According to the F.I.R. and statement of the P. W. 1, she had been to the matrimonial house of deceased Tulu Dasi at 7 a. m. on 03.05.1997. The inquest, which was, marked Exhibit-3 shows that the inquest report was done on 03.05.1997. If so, it was not understood why the F. I. R. was lodged after such a long interval of one month. A careful reading of the F. I. R. makes it abundantly clear that there is no specific allegations and aspirations of "cruelty" on the victim for more dowry. The allegations and aspirations regarding torture in the F.I.R. are not specific. In other words, some hypothetical allegations have been made regarding demand of dowry and inflicting torture on the victim by the appellant for that purpose. There is no explanation whatsoever also for lodging F.I.R. after such a long period. Even at the time the G. D. entry was made in the Nanoor P. S., no story of torture or demand of dowry was recorded. There is no explanation whatsoever also for lodging F.I.R. after such a long period. Even at the time the G. D. entry was made in the Nanoor P. S., no story of torture or demand of dowry was recorded. What appears on appreciation of the matters and evidence is that the time of making G.D. entry of unnatural death, there was no case of torture and demand for dowry. At the time of lodging the F.I.R. even one month thereafter, the allegations of torture and demand of dowry was made hypothetically. Suddenly, at the time of recording evidence in the trial Court, the de facto complainant, Kali Dasi started giving details of torture by saying that her sister Tulu was subjected to torture in her matrimonial house and was asked to bring money from her paternal house and that she was not provided with adequate food. 8. BESIDES Kali Das, P. W. 3, Bipadtaran Das, the brother of deceased Tulu supported the prosecution case. He was the man who informed the police about the death of Tulu Dasi and on the basis of his report an U. D. case was started. He was the man who had written the F. I. R. lodged by Kali Dasi after one month of the incident. Tulu was his maternal sister. The P. W. 3 stated that although the appellants behaved properly with Tulu initially but, their behaviour changed afterwards and they started torturing and beating her and told her that they would get golden ring and money from Bipadtaran Das. The fact that the appellants had been beating Tulu Dasi and asked her to bring golden ring and money from Bipadtaran Das had not been supported ever, by Kali Dasi, P. W. 1. So, the prosecution case was further developed at the time the P. W. 3 was examined. The P. W. 4 was the sister of Kali Dasi. She stated that Tulu told her that she was tortured and assaulted by the appellants. The P. W. 4, however, has supported the statement of P. W. 3, that Bipadtaran Das told her that Tulu was asked by the appellants to bring money and golden ring from Bipadtaran Das and victim reported him that she was not living happily in her matrimonial house. The P. W. 4, however, has supported the statement of P. W. 3, that Bipadtaran Das told her that Tulu was asked by the appellants to bring money and golden ring from Bipadtaran Das and victim reported him that she was not living happily in her matrimonial house. Statement of P. W. 4 was not recorded by the I. O. It also appears that from the evidence of P. W. 1, P. W. 3 and P. W. 4 that Tulu and the appellant Nilu @ Lilu have been living separately from other appellants at the time the alleged incident had taken place. The P. W. 2 was a local man who come forward and stated that Nilu has admitted that fact. The P. W. 5 is another local man, but did not support the prosecution case at all. In course of trial, the doctor who conducted the post mortem and prepared the report was examined. The cause of death, in true sense, was not established by way of chemical examination and the post mortem report does not say that the death was due to strangulation. The prosecution case was developed stage by stage. Initially, there was no case of torture and demand of money. One month thereafter when the F. I. R. was lodged, allegations of torture and demand of money was made hypothetically. In course of trial, i. e., 8 to 9 years after the incident, suddenly, three closed relations of Tulu disclosed that she was subjected to cruelty for demand of golden ring and money. The judgment impugned if it is read minutely, it will appear that the learned Judge was confused as to what was the reason for the alleged torture upon Tulu by the appellants. In the running page 17 of the impugned judgment, the learned Court observed that there was no cogent evidence led by the prosecution, but at the same time observed that corroborated evidence of the P.Ws. proved beyond reasonable doubt that the appellants used to torture upon deceased Tulu. In the running page 17 of the impugned judgment, the learned Court observed that there was no cogent evidence led by the prosecution, but at the same time observed that corroborated evidence of the P.Ws. proved beyond reasonable doubt that the appellants used to torture upon deceased Tulu. Again, in page 17 of the judgment, the learned Court observed "in the instant case, there is no cogent evidence against the five accused persons other than Lilu Das that they used to torture Tulu soon before her death but it is established that they used to torture upon Tulu Das." In page 18, the learned Court observed "as such though there is no cogent evidence against these five accused persons viz. Saraswati Dasi, Rabi Das, Bhola Das, Helu Das, Bilu Das to bring them under the purview of Section 304B I.P.C. but, there is sufficient materials-on-record to prove that these five accused persons viz. Saraswati Das, Rabi Das, Bhola Das, Helu Das, and Bilu Das are guilty of offence punishable under Section 498A I.P.C." 9. IT is stated that P.W.1 and P. W.3 had been to the matrimonial house of the Tulu Das immediately after receiving death news. That cannot be ignored. The fact that inquest was done in their presence cannot also be ignored. They found some marks on the neck of Tulu Das. Even then, they did not go to the police and lodged the F.I.R. within 30 days. 10. THE learned Court also had given a plausible explanation for the delay in filing the F.I.R., which does not appear to be a reasonable one if the facts and circumstances of the case are considered. The learned Court did not find evidence of "cruelty" against the appellants within the meaning of Section 498A I. P. C. but, convicted them for committing offence under Section 498A I.P.C. In fact, there is no cogent and reliable evidence against the appellants which has established the prosecution case that the victim was subjected to cruelty in her matrimonial house and that she committed suicide because of such cruelty. 11. THE learned Court while in the process of discarding the prosecution story, suddenly changed his mind and recorded conviction simply on the basis of presumption under Section 113B of the Indian Evidence Act. 12. P. Ws. 3 and 4 stated that Tulu herself reported that she was subjected to torture in her matrimonial house. 11. THE learned Court while in the process of discarding the prosecution story, suddenly changed his mind and recorded conviction simply on the basis of presumption under Section 113B of the Indian Evidence Act. 12. P. Ws. 3 and 4 stated that Tulu herself reported that she was subjected to torture in her matrimonial house. But they did not disclose that fact to anyone and even to the P. W. 1 or to each other prior to their examination in Court i. e., nine(9) years after the incident. This appears to be peculiar. It has also been found that the prosecution developed its case stage by stage. The learned trial Court did not find any cogent, trustworthy and acceptable evidence against the appellants. This judgment, therefore, is not sustainable in law. The learned Court perhaps recorded conviction under Section 304B I. P. C. and the order under challenge being oblivioius of the fact that it found no cogent, reasonable evidence against the appellants in respect of the alleged cruelty and dowry death. The learned Court was oblivious of the fact that the appellant Nos. 2 to 6 had been living in separate house. Therefore, it was not possible for them to inflict torture on the victim as stated by the P.Ws. 1, 3 and 4. The learned Court also imposed fine of Rs.5000/- besides rigorous imprisonment for seven years as far as Nilu @ Lilu Das is concerned. There is no provision of imposing fine in case of Section 304B I. P. C. Indian Penal Code only provides sentence and imprisonment in case of dowry death. The appellant Nilu @ Lilu Das is in custody for 5/6 years. He has been sentenced to undergo R. I. for seven years to the highest. The prosecution case of cruelty as well as other appellants has not been established at all. This Court thinks that the judgment and the order of conviction passed by the trial Court is liable to be interfered with in this appeal. 13. TAKING everything into consideration, this Court allows the appeal. The judgment and the order of conviction is set aside. The appellants be acquitted from the charges without delay. Criminal Section is directed to supply urgent photostat certified copy of this order, if applied for, to the parties on usual undertakings.