Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 283 (CAL)

Kalipada Biswas v. STATE OF WEST BENGAL

2011-02-28

KALIDAS MUKHERJEE, MD.ABDUL GHANI

body2011
JUDGMENT Mukherjee, J. 1. THIS appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 2nd Court, Krishnanagar, Nadia sentencing each of the appellants to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for six months under Section 302/ 34 of the Indian Penal Code. The learned Trial Judge did not pass any separate sentence for the commission of the offence under Section 498A of the Indian Penal Code. 2. THE prosecution case, in short, is that one Ananda Sarkar lodged complaint with O.C. Haringhata P.S. alleging that his elder sister Rajeswari Sarkar (Biswas) was married with Bhola Nath Biswas on 5th Falgun, 1397 B.S. One year after marriage her husband and the inmates of his family started committing mental and physical torture upon her. On different occasions due to the intervention of the villagers his elder sister could manage to live in her matrimonial home for some length of time. But, for the last six months, his elder sister lived in his house. Being unable to meet the expenses of the elder sister and her daughter, the informant sought for the settlement through the intervention of the villagers and as per terms of settlement held on 09.11.1994 it was settled that Rajeswari would to go to her matrimonial home. But, in order to take the household articles she came to the house of the informant and thereafter on 21.11.1994 the informant with his elder sister took the articles and went to the matrimonial home of Rajeswari by a rickshaw. They reached the house of Bholanath, the husband of Rajeswari, between 2.30 P.M. and 3.00 P.M. THE accused persons told them not to enter their house. Rajeswari, the elder sister of the informant, sat on the varandah of her husband's house with her daughter Swapna Biswas in her lap. At that time all the accused persons came to assault Rajeswari. Accused Sambhu Biswas with the help of a spade assaulted Swapna Biswas on the head and thereafter assaulted Rajeswari on the head, neck and back. When the informant tried to resist them, he was intercepted by all the accused persons and accused Sambhu Biswas proceeded to assault the informant with the help of spade. Hearing the shouts, the neighbouring persons assembled there and rescued the informant. When the informant tried to resist them, he was intercepted by all the accused persons and accused Sambhu Biswas proceeded to assault the informant with the help of spade. Hearing the shouts, the neighbouring persons assembled there and rescued the informant. THE informant took the injured by the rickshaw of Kalipada Biswas to Kashtadanga Hospital. As the doctor was not present there, the injured were referred to Jagulia Hospital. But on way to Jagulia Hospital both the injured succumbed to the injuries. THE Informant came back and kept the dead bodies in the house of Kalipada, the father-in-law of the deceased. Accused Sambhu and Bhola fled away from the house. After receipt of the complaint, Haringhata P.S. Case No. 151 dated 21.11.1994 was started under Sections 498A/302 of the Indian Penal Code. After completion of investigation the charge-sheet was submitted. 3. THE learned Trial Judge framed charges under Sections 498A and 302/34 of the Indian Penal Code. THE accused persons pleaded not guilty and claimed to be tried. 4. MR. Dastoor appearing for the appellants submits that the learned Trial Judge did not properly examine the accused persons under Section 313 Cr.P.C. It is contended that the learned Trial Judge put some questions to the accused persons in the manner which were not stated by the witnesses. MR. Dastoor submits that so far as the allegation under Section 498A is concerned, there is no allegation of dowry in the F.I.R. and no reason was given in the F.I.R. for the alleged torture. It is contended that accused Bhola and others lived separately. Mr. Dastoor submits that the alleged occurrence took place on 21.11.1994 between 2.30 P.M. and 3.00 P.M. and the F.I.R. was lodged on the same day at 3.45 P.M. It is contended that the F.I.R. was sent to the learned Magistrate on 23.11.1994, although, the P.S. was about 10 K.M. away from the place of occurrence. Mr. Dastoor submits that the delayed despatch of the F.I.R. to the learned Magistrate speaks of embellishment and fabrication. 5. MR. Dastoor contends that as per the prosecution case, P.W. 1 took the injured persons to Kashtadanga Hospital and therefrom on way to Jagulia Hospital, the injured persons allegedly succumbed to the injuries. MR. Mr. Dastoor submits that the delayed despatch of the F.I.R. to the learned Magistrate speaks of embellishment and fabrication. 5. MR. Dastoor contends that as per the prosecution case, P.W. 1 took the injured persons to Kashtadanga Hospital and therefrom on way to Jagulia Hospital, the injured persons allegedly succumbed to the injuries. MR. Dastoor contends that P.W. 1 thereafter allegedly came back to the place of occurrence and left the dead bodies in the house of the father-in-law of the deceased which is not at all acceptable from the standpoint of probability. 6. MR. Dastoor contends that when the incident allegedly happened between 2.30 P.M. and 3.00 P.M. and P.W. 1 having taken the injured persons to Kashtadanga Hospital and then on way to Jagulia Hospital the injured persons succumbed to the injuries, under such circumstances, it was improbable to lodge the complaint with the P.S. at 3.45 P.M. MR. Dastoor contends that P.W. 1 was not present at the alleged place of occurrence and the F.I.R. was ante-dated. Mr. Dastoor contends that the inquest was held at 17.05 hours with the mention in the report that there were injuries on different portions of the dead body. It is contended that post mortem report does not tally with the inquest report. It is submitted that excepting Ananda none of the witnesses to the inquest was examined. It is further contended that the inquest report was not prepared in the same sitting. 7. MR. Dastoor contends that from the evidence of P.W. 7, the nurse of the Kashtadanga Hospital it would appear that Kalipada, the father-in-law of the deceased came to the hospital. It is contended that P.W. 1 claims to be the eyewitness, but, his testimony cannot be accepted because of inherent improbabilities and inconsistencies. 8. MR. Dastoor contends that the seized spade has not been shown to the doctor which is a serious infirmity in the prosecution case it is contended that there is no evidence as to the prearranged plan amongst the accused persons. It is submitted that P.W. 1 Ananda did not say as to how he and his sister arrived at the alleged place of occurrence. MR. It is submitted that P.W. 1 Ananda did not say as to how he and his sister arrived at the alleged place of occurrence. MR. Dastoor has referred to and cited the decisions reported in 1975(3) SCC 815 [Ram Kumar Pandey v. State of Madhya Pradesh]; 1975 SCC (Cri) 601 [Balaka Singh and Others v. The State of Punjab]; AIR 1976 SC 2423 [Ishwar Singh v. The State of Uttar Pradesh]; AIR 1972 SC 535 [Parichhat and Others v. The State of Madhya Pradesh] and 1981 SCC (Cri) 352 [Puroshottam and Another v. State of Madhya Pradesh]. Mr. Dutta Gupta appearing on behalf of the State submits that the F.I.R. was lodged within one hour of the occurrence. Mr. Dutta Gupta submits that there is ample evidence to the effect that accused Sambhu dealt the blow causing the death of Rajeswari and her daughter Swapna. It is submitted that the other accused persons were present and, as such, they were liable under Section 34 of the Indian Penal Code. It is contended that there is no cross-examination on the point of dowry. 9. MR. Dutta Gupta contends that there is ocular version of P.W. 1 and reliance is placed on the evidence of P.W. 8 who has stated that P.W. 1 narrated the incident to him. 10. ON perusal of the evidence on record, the learned Trial Judge passed the impugned judgment holding that it was crystal clear from the oral evidence of P.W. 1, who was the sole ocular witness in the instant case that accused Sambhu had taken spade and assaulted the victims Rajeswari and her daughter Swapna in presence of other three accused persons. The learned Judge held that it was quite clear from the evidence of P.W. 1 that three accused persons along with Sambhu restrained Rajeswari and her daughter from entering their house when they came to their house on the very fateful day, that is, on 21.11.1994. The learned Judge held that Sambhu committed the murder of Rajeswari and Swapna and other accused persons were also involved in the commission of the said offence by restraining Rajeswari and her daughter from entering the house. Mr. Dastoor has put much stress on the improbability of lodging the F.I.R. on 3.45 P.M. under the facts and circumstances of the case. Mr. Dastoor has put much stress on the improbability of lodging the F.I.R. on 3.45 P.M. under the facts and circumstances of the case. It is in the complaint that on 21.11.1994 the informant Ananda with Rajeswari and her daughter went to the house of Bholanath, the husband of Rajeswari. It has been categorically stated therein that they started from the village at 2.30 P.M./3.00 P.M. by rickshaw and when they reached the house of Bholanath, the accused persons did not allow them to enter their house. 11. FROM the F.I.R. it is clear that the P.S. is about 10 K.M. away from the alleged place of occurrence. If they had started from the village at 2.30 P.M./3.00 P.M. by rickshaw and after happening of the alleged incident and taking the injured to the hospital and again coming back to the place of occurrence and leaving the dead bodies in the house of Kalipada, the father-in-law of the deceased, it was impossible to lodge the F.I.R. at 3.45 P.M. Within such short span of 1.15 hours it was in no way possible to lodge the F.I.R. at 3.45 P.M. 12. IT is the defence plea that Rajeswari had illicit relation with one Abinash and he was responsible for the death of Rajeswari and her daughter. IT was suggested to P.W. 1 that Rajeswari used to reside in the house of P.W. 1 only to keep her illicit connection alive with said Abinash and that Abinash had killed Rajeshwari when she was going to her husband's house after putting an end to her illicit connection. IT was further suggested to P.W. 1 that Abinash fled away to Bangladesh after the said incident and to save Abinash this case has been falsely lodged. But P.W. 1 has denied all these suggestions, out to him by the defence. It was suggested to P.W. 1 that Bholenath used to tell him about the illicit connection of Rajeswari with Abinash but P.W.1 has denied it. 13. P.W.1 has admitted that he knew Abinash who was his next door neighbour. P.W. 2 Bidhan Sarkar has also admitted in cross- examination that he knew one Abinash who was the adjacent house owner of P.W. 1. P.W. 8 Suklal Sarkar has stated that he knew Abinash, but, he denied the suggestion that Rajeswari had illicit relation with Abinash. 13. P.W.1 has admitted that he knew Abinash who was his next door neighbour. P.W. 2 Bidhan Sarkar has also admitted in cross- examination that he knew one Abinash who was the adjacent house owner of P.W. 1. P.W. 8 Suklal Sarkar has stated that he knew Abinash, but, he denied the suggestion that Rajeswari had illicit relation with Abinash. it is also in the FIR that for the last six months Rajeswari used to live in the house of the informant. 14. ANOTHER significant aspect of this case is that the informant allegedly on his way to Jagulia Hospital found that the injured succumbed to the injuries and he again came back to the place of occurrence and left the dead bodies in the house of Kalipada, the father- in-law of the deceased. This conduct of the informant is not in consonance with the ordinary human conduct. It is in the evidence of P.W. 1 that in the house of accused persons he was also attacked with spade by accused Sambhu, but due to the intervention of the villagers he was saved. Under such circumstances he could have gone to the P.S., hospital or any other place, but, coming back to the place of occurrence and leaving the dead bodies to the house of the accused persons, is highly improbable. It leaves room for serious doubt that the incident happened in any other way and not in the manner as alleged in the F.I.R. As regards the allegation under Section 498A of the Indian Penal Code, there is no whisper in the F.I.R, as to the demand for dowry. In the cross-examination, P.W. 1 could not say the date, month and year of such demand for dowry. As regards ill treatment, P.W. 1 has stated in cross-examination that Rajeswari used to narrate her plight to him and he informed the local P.S. on 10.10.1992. But, no such G.D. entry was produced at the time of trial. P.W. 2 has stated that Rajeswari was his niece. In the cross-examination he could not say the date month and year when the accused persons had assaulted and committed torture upon Rajeswari or when Rajeswari narrated her plight about the said assault and torture upon her by the accused persons at her matrimonial home. P.W. 2 has stated that Rajeswari was his niece. In the cross-examination he could not say the date month and year when the accused persons had assaulted and committed torture upon Rajeswari or when Rajeswari narrated her plight about the said assault and torture upon her by the accused persons at her matrimonial home. It appears from the cross-examination of P.W. 2 that by surmise he has stated that alleged torture was started upon Rajeswari one year after marriage. 15. IN the F.I.R. it has been stated thai there was a salish on 09.11.1994. P.W. 1 has stated that Bholanath gave an undertaking before them in presence of the villagers, namely, Chittaranjan Das and Anil Sarkar to the effect that he along with his family members would not make any further torture upon Rajeswari. The said undertaking was allegedly made on 09.11.1994. But none of those witnesses to the salish has been examined. The said undertaking has also not been admitted in evidence. Under such circumstances, it is clear that the allegations of torture, ill treatment and dowry are unfounded. 16. THE inquest was held at 5.20 P.M. THE inquest report reveals that there were five witnesses, but, excepting Ananda (P.W. 1) none of the other witnesses to the inquest was examined. It appears from the evidence of the P.W. 1 that he has four brothers, but, none of the other brothers was examined. P.W. 1 has stated that he took the injured by van rickshaw to the hospital. In the F.I.R. he has stated that it was the rickshaw van of Kalipada. P.W. 3 in her cross-examination stated that Kalipada, father of Bholanath, was carrying the injured to the hospital by a trolley rickshaw. 17. P.W. 7, the nurse of Kasthadanga S.H.C. has stated in cross- examination that she came to learn from the patient that it was a case of accident. She has stated further that Kalipada was present in the hospital. Evidently, therefore, it was Kalipada who carried the injured to the hospital by his rickshaw van. His presence at the hospital is not coming in the aid of the prosecution. 18. ANOTHER important aspect of the case is that the offending weapon, that is, the spade was seized, but, it was neither shown to the I.O. nor to the autopsy surgeon at the time of their examination during trial. His presence at the hospital is not coming in the aid of the prosecution. 18. ANOTHER important aspect of the case is that the offending weapon, that is, the spade was seized, but, it was neither shown to the I.O. nor to the autopsy surgeon at the time of their examination during trial. This omission on the part of the prosecution is a serious lacuna in the prosecution case, which tells upon the veracity of the prosecution case itself. In the case of Ishwar Singh v. The State of Uttar Pradesh (supra) it has been held in Paragraph 8 as follows:- "......It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused With that weapon. Failure to do so may sometimes, cause aberration in the course of justice...." 19. MR. Dastoor submits that there was inordinate delay in sending the F.I.R. to the learned Magistrate. It appears that the incident allegedly occurred on 21.11.1994 at 2.30 P.M./3.00 P.M. and the F.I.R. was lodged on the same day at 3.45 P.M. The F.I.R. was sent to the learned Magistrate on 23.11.1994. In the case of Balaka Singh and Ors. v. State of Punjab (supra) the delay of twelve hours in sending the F.I.R. to the learned Magistrate was found to be fatal to the prosecution case. 20. IN the case of Bijoy Singh and Another v. State of Bihar, reported in 2002(9) SCC 147 it has been observed by the Hon'ble Apex Court in Paragraphs 6 and 7 as follows:- "6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial/The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought." "7......The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not....." We are of the considered view that the delay in sending the F.I.R. to the learned Magistrate should be considered having regard to the facts and circumstances of each case. If any delay is caused in sending the F.I.R. to the learned Magistrate it would not, ipso facto, throw out the prosecution case. It is to be seen whether evidence led by the prosecution is otherwise trustworthy and free from any doubt. Here in the instant case, there is delay of two days in sending the F.I.R. to the learned Magistrate, although, the distance of the P.S. is about 10 K.M. from the P.O. We have already held that there are inherent improbabilities, legal infirmities and inconsistencies in the prosecution case. In such view of the matter, we find that the delay in sending the F.I.R. to the learned Magistrate signifies embellishment and fabrication. 21. IT appears that the learned Trial Judge did not examine the accused persons properly. The object of examination of the accused persons Under Section 313 Cr.P.C. is to bring the incriminating materials as appearing in the evidence adduced by the prosecution, to the accused person, so that he can explain the circumstances which may go against him. 22. AS to the object of Section 313 Cr.P.C. it has been held by the Hon'ble Apex Court in the case of Shaikh Maqsood v. State of Maharashtra, reported in 2009 (2) C.Cr. 22. AS to the object of Section 313 Cr.P.C. it has been held by the Hon'ble Apex Court in the case of Shaikh Maqsood v. State of Maharashtra, reported in 2009 (2) C.Cr. LR (SC) 371 in Paragraph 8 as follows:- ".....The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give." In the instant case the learned Trial Judge while examining accused Bholanath Biswas put question under Serial No. 13 as follows:- "After getting the news of the death of your wife and child, did you perform funeral of their dead bodies?" The learned Judge while examining Bina Rani Biswas put questions under Serial No. 6 as follows:- "Being a mother-in-law have you tried to know the incident regarding the death of Rajeswari and her daughter Swapna or lodged any complaint before any person?" We are of the considered view that these questions did not necessarily emanate from the evidence of the P.Ws. and the learned Judge put questions to the accused persons in his own way and not explaining the incriminating materials to the accused. The accused persons under such circumstances, can be said to have been prejudiced by the failure of the learned Judge in not examining them in accordance with the letter and spirit of Section 313 Cr.P.C. 23. ON perusal of the evidence on record and after giving anxious consideration to the submission of the learned Counsel for the parties, we are of the considered view that the alleged ocular evidence of P.W. 1, said to be the lone eye witness of the case, is not worthy of credence. The learned Trial Judge was not justified in passing the impugned judgment. The learned Trial Judge was not justified in passing the impugned judgment. We, therefore, set aside the impugned judgment. The appellants are found not guilty of the charges levelled against them and, accordingly, they are acquitted. The appeal is allowed. 24. LET a copy of this judgment along with the Lower Court Records be sent to the learned Court below immediately. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible. Ghani, J.:-- I agree.