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2011 DIGILAW 366 (CAL)

Tapan Sarkar v. STATE OF WEST BENGAL

2011-03-14

KALIDAS MUKHERJEE, MD.ABDUL GHANI

body2011
JUDGMENT Mukherjee, J. 1. THESE two appeals are directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Case No. 7 of April, 1992 corresponding to Sessions Trial No. 2 of September, 1993 sentencing each of the appellants to suffer R.I. for life and to pay fine of Rs. 3,000/- in default to under go R.I. for two years. 2. THE prosecution case, in short, is that one Bablu Kumar Dutta lodged complaint with the Officer-in-Charge, Khatra P.S. alleging that on 21st Phalgun, 1397 B.S. his sister Dipu Dutta was married with Swamp Sarkar of Bogabaid. Arup Sarkar is the elder brother of Swarup and Binapani is the wife of Arup. After marriage, Arup Sarkar and his wife Binapani Sarkar started committing torture upon Dipu. In absence of Swarup, the other inmates of her husband's family used to express that as a result of Swarup's marriage with Dipu the family would be enlarged and the properties would gradually be reduced. Dipu gave birth to a female baby. After the birth of the child, the elder brother of Dipu's husband and his wife used to tell that the hard earned money of the family would have to be spent for the said baby. They also expressed that birth of the child was meant for destruction for the property. On 6.8.1990 at about 1.30 hours at night Bidyut Sarkar, the cousin of Swarup, came to the house of the informant and stated that on 05.08.1990 between 6.00 and 6.30 p.m. Dipu and her mother-in-law went to ease themselves out side the house by keeping the baby under a mosquito net at the covered varandah of their house. At that time Binapani, the wife of Arup, was baking bread. One hour thereafter Dipu and her mother-in-law came back home and found that the baby was not there. They found that the iron chain of the gate of compound was also unfastened. On being asked Binapani could not give satisfactory answer. In course of search for the child, Tapan the younger brother of Arup suddenly shouted and informed that the baby was floating in the water inside the well. THE complaint was lodged against Binapani Sarkar, her husband Arup Sarkar and Tapan Sarkar, the brother of Arup Sarkar alleging that they caused the death of the child by throwing her in the well. THE complaint was lodged against Binapani Sarkar, her husband Arup Sarkar and Tapan Sarkar, the brother of Arup Sarkar alleging that they caused the death of the child by throwing her in the well. After receipt of the complaint, Khatra P.S. Case No. 37 of 1990 dated 6.8.1990 was started. After completion of investigation, the charge-sheet was submitted. The charges were framed under Sections 498A and 302/34 of the Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tried. 3. MR. Biswas, learned Counsel for the appellants submits that there is no direct evidence and the case rests on circumstantial evidence. It is contended that the chain of evidence is not complete and, therefore, the evidence adduced by the prosecution was not sufficient to establish the hypothesis of the guilt of the accused persons. MR. Biswas contends that the evidence adduced by the prosecution does not suggest that in all probabilities the accused persons were the perpetrators of the crime. 4. MR. Biswas contends that Bablu Kumar Dutta, the author of the F.I.R., had no direct knowledge in regard to the alleged occurrence. As regards the family quarrel, MR. Biswas submits that it cannot be said to be a motive for the commission of the alleged offence, especially, when Arup and Binapani were the negotiators of the marriage between Dipu Sarkar and Swarup Sarkar. MR. Biswas contends that Swarup Sarkar has not been examined in this case. MR. Biswas submits that mere presumption cannot form the basis of conviction under Section 302/34 of the Indian Penal Code. It is contended that there is no clinching evidence pointing at the guilt of the accused persons. Mr. Biswas submits that the learned Judge of the Court below could not examine properly the accused persons under Section 313 Cr.P.C. It is contended that the learned Judge was not justified in passing the judgment of conviction and sentence. 5. MR. Dutta Gupta appearing on behalf of the State submits that the baby was two and half months old and it is needless to say that the baby was unable to walk. MR. Dutta Gupta submits that there is direct evidence of the alleged occurrence, but, there is strong circumstantial evidence which would point at the guilt of the accused persons. 6. MR. Dutta Gupta submits that from the evidence of the P.Ws. MR. Dutta Gupta submits that there is direct evidence of the alleged occurrence, but, there is strong circumstantial evidence which would point at the guilt of the accused persons. 6. MR. Dutta Gupta submits that from the evidence of the P.Ws. it would appear that the baby was thrown into the well. MR. Dutta Gupta submits that the mother of the child was examined as P.W. 11 and from her evidence it would be clear that there was hostile relation between her and the other inmates of the family. MR. Dutta Gupta contends that the alleged incident occurred at 6.30 p.m. when the other accused Tapan and Arup were present in the house along with Binapani. It is contended that there is no satisfactory reply from the accused persons regarding the missing of the child and when the search was being made to trace out the child, it was accused Tapan who pointed out that the baby was floating in the water of the well, although, in his examination under Section 313 Cr.P.C. he denied his presence at time and place of occurrence. MR. Dutta Gupta contends that the alleged absence of Tapan from the place of occurrence at the material time is not acceptable, inasmuch as, P.W. 3 has stated that Tapan was engaged in the act of rolling the pipe at 7.30 p.m. MR. Dutta Gupta contends that the incident occurred at 6.30 p.m. when Tapan was very much present at the place of occurrence. Mr. Dutta Gupta contends that no cross-examination was made to any of the P.Ws. that Tapan was away from the house at the material point of time and, as such, explanation given for the first time in the statement under Section 313 Cr.P.C. is not acceptable at all. 7. MR. Dutta Gupta contends that the motive behind the commission of such offence is not far to seek. It is contended that the relation between the mother of the child and other inmates of the family was hostile as it is evident from the testimony of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 7. 8. AS regards the evidence of the Autopsy Surgeon, Mr. Dutta Gupta submits that death was due to drowning which was ante mortem and homicidal in nature. 8. AS regards the evidence of the Autopsy Surgeon, Mr. Dutta Gupta submits that death was due to drowning which was ante mortem and homicidal in nature. It is contended that the post occurrence conduct of the accused persons irresistibly point at the guilt of the accused persons. Mr. Dutta Gupta contends that there is no ground to interfere with the conviction and sentence recorded by learned Trial Judge. The learned Trial Judge upon consideration of the materials-on-record passed the impugned judgment holding that all the accused persons who were present at the time and place of occurrence had hostile relation with Dipu. The learned Judge held that there was prearranged plan or design to commit the offence and all the accused persons joined the same. The learned Judge held that it was nobody's case that the child accidentally slipped into the well from the custody of any person in an unguarded and uncared moment and the irresistible presumption would be that the child certainly was thrown into the well by some person. The learned Judge while recording the conviction and sentence relied on the evidence of P.W. 11, that is, the mother of the child. The learned Judge ultimately held that the cumulative effect of the circumstances negatived the innocence of the accused persons and definitely pointed at the guilt of the accused persons. 9. IT is true that there being no direct evidence, the present case rests on the circumstantial evidence. In such a case it is to be seen whether or not the chain of evidence is complete and the evidence adduced by the prosecution irresistibly lead us to the conclusion that the appellants are the perpetrators of the crime. 10. P.W. 1 is the neighbour of Dipu Sarkar. Before being declared hostile she has stated that on 5.8.1990 the daughter of Dipu died and there was usual incident of quarrel between Dipu Sarkar and other inmates of her in-law's family. It is in her evidence that Dipu left her matrimonial home and went to her parent's house. It is also in her evidence that Dipu gave birth to a child at her paternal house and one-month thereafter she came back to her matrimonial home. P.W. 2 was declared hostile. 11. P.W. 3 was a member of local Gram Panchayat. It is in her evidence that Dipu left her matrimonial home and went to her parent's house. It is also in her evidence that Dipu gave birth to a child at her paternal house and one-month thereafter she came back to her matrimonial home. P.W. 2 was declared hostile. 11. P.W. 3 was a member of local Gram Panchayat. It is in his evidence that the child expired on 5.8.1990 and on the relevant date at about 7.30 p.m. he along with some other people were rolling down a pipe; Tapan was with him while the pipe was being rolled down. 12. P.W. 4, a neighbour of the appellants, has stated that Shampa (P.W. 1) is his daughter and when Dipu left her matrimonial home for her paternal house, Shampa accompanied her. It is in his evidence that Dipu left the matrimonial home due to torture committed upon her. It is in the evidence of P.W. 4 that after reaching the house of the accused persons he found that many villagers were engaged in searching the missing child and Tapan at that time came and suddenly pointed out that the missing child was within the well. He has stated that the child was two and half months old; Police made the seizure and he has signed the seizure list. In the cross-examination he has stated that Swarup, the husband of Dipu was living at her brother-in-law's house at Indus. In the cross-examination P.W. 4 has stated that Sampa (P.W. 1) was present when Tapan pointed out the missing child; in course of search Tapan by flashing torch light suddenly pointed out that the child was floating in the well. P.W. 5 and P.W. 7 have stated that in course of search Tapan drew their attention towards the well and he stated that the child was floating in the water of the well. 13. P.W. 8 has stated that he was rolling a pipe and at that time he heard a row; he rushed to the spot and found that the child of Dipu was found missing; Tapan said that he was going to bring a "hazak" light; before bringing the "hazak" light Tapan cried out that the child was floating in the well. 14. P.W. 10 has stated that Dipu is his sister. 14. P.W. 10 has stated that Dipu is his sister. It is in his evidence that the inmates of her in-laws family did not properly behave with Dipu and they occasionally used to assault and abuse her. It is in his evidence that at the time of delivery, Dipu came to Khatra and after delivery she went back to her father-in-law's house. It is in his evidence that during Dipu's visit to her paternal house she used to disclose that she was getting ill-treatment for having delivered a female child and that the inmates of her in-law's family used to tell that for a female child the cost of maintenance in the family would increase and it would be a burden to arrange for her marriage. P.W. 11 is Dipu Sarkar, the mother of the deceased child. Her evidence is very vital in the circumstance of this case. It is in her evidence that her husband used to live at Indus and all the members of her in-law's family used to commit physical and mental torture upon her and they used to make bad comments and abuse her. She has also stated that she was even assaulted by the members of her in-law's family and since she could not bear the torture; one day she left the matrimonial home with Shampa (P.W. 1) for her father's house. It is in her evidence that since she delivered a female child; her husband told that none of her in-law's family would come to see her. She has stated that after her arrival to her father- in-law's house she had to bear some bad comments and after the delivery of the child her husband did not also behave well with her. 15. P.W. 11 has stated that on 5.8.1990 in the evening she had to go to the tank being accompanied by her mother-in-law; at that time her husband's elder brother (Arup Sarkar) and his wife Binapani were staying in the room; the baby was, lying in the covered varandah inside a mosquito net; while leaving the house she informed Binapani that she was going to the tank and Binapani assured her that she would take care of the child. 16. P.W. 11 has further stated that while coming out of the door of the premises she found that Tapan was coming towards their old house from the new house. 16. P.W. 11 has further stated that while coming out of the door of the premises she found that Tapan was coming towards their old house from the new house. She has stated that she returned after 45 minutes and while coming back he found that Binapani and Arup were coming out of the covered varandah. It is in her evidence that she asked them about the child, but, they did not give any proper reply and were fumbling. It is in her evidence that she found that the mosquito net was undisturbed, but, the child was missing. She has stated that she met Shampa's mother in the contiguous house and asked about the child. P.W. 11 has stated that Binapani told that the baby might have been taken by thieves or ghosts. She has stated that the villagers then started searching in the vicinity of the house. Flashing torchlight Tapan suddenly cried out that the child was floating inside the well. Undisputedly, the child was two and half months old and Swarup, the father of the child was living at Indus in connection with his livelihood. It is clear from the evidence of P.W. 11 that she along with her mother-in-law went to the tank and at the time of leaving the house, she left the child in the custody of Binapani who assured her of taking care of the child. After coming back home she did not find her baby in the bed and Binapani on being asked gave some evasive and irrelevant replies. When the villagers started searching for the baby, Tapan suddenly cried out and said that the baby was found floating in the water of the well. All the appellants, therefore, were present at the time and place of occurrence. 17. MR. Biswas submits that Tapan in his statement under Section 313 Cr.P.C. stated that he was not present at that time in his house. But this contention of MR. Biswas is not acceptable, inasmuch as, the other P.Ws have categorically stated that Tapan cried out saying that the baby was floating in the well. So the alleged plea of alibi in respect of appellant Tapan being an evasive plea, is not acceptable. 18. But this contention of MR. Biswas is not acceptable, inasmuch as, the other P.Ws have categorically stated that Tapan cried out saying that the baby was floating in the well. So the alleged plea of alibi in respect of appellant Tapan being an evasive plea, is not acceptable. 18. IT is in the evidence of P.W. 8 that Tapan said that he was going to bring a "hazak" and before bringing the "hazak" light Tapan cried out that the child was floating in the well. This conduct on the part of appellant Tapan clearly indicates that he knew beforehand that the child was there in the well and, that is why, even telling that he was going to bring a "hazak" light, he suddenly went to the well and cried out that the child was floating in the well. This act of pointing out of the child by Tapan in such manner, unmistakably point at his guilt. From the evidence of P.W. 11 it is clear that Binapani and Arup were also present in the house and Binapani's reply as to the missing of the child was evasive. From the evidence of the P.Ws. it is clear that the inmates of the house used to ill-treat Dipu and for that reason she had to go to her parent's house at the time of delivery of the child. She again came back to her in-law's house after the birth of the child. It is in the evidence of P.W. 11 that the inmates of her in-law's family were not happy for the birth of a female baby and they used to make bad comments for the birth of a female baby. This indignation towards the female baby is indicative of the motive for the commission of the alleged offence. Such hostile attitude of the appellants, their presence at the time of occurrence and subsequently their evasive reply irresistibly and unmistakably point at the guilt of the appellants. The link in the chain of evidence is complete and there is no room for doubt about the direct and active participation of the appellants in the commission of the alleged offence. 19. THE Autopsy Surgeon (P.W. 13) has stated that on dissection fair amount of extravasated clotted and liquid blood was seen to infiltrate the tissues of whole of scalp. He has stated that mud and sands were found in the respiratory tract. 19. THE Autopsy Surgeon (P.W. 13) has stated that on dissection fair amount of extravasated clotted and liquid blood was seen to infiltrate the tissues of whole of scalp. He has stated that mud and sands were found in the respiratory tract. He has opined that the death was due to drowning which was ante mortem and homicidal in nature. In the cross- examination he has stated that blood on the scalp was noticed since it probably colided with a hard substance within the well. He has further stated that if a baby falls from the lap of a person inside the well no such injury on the scalp could be caused since no force was applied to cause the baby to fall. THE evidence of the Autopsy Surgeon shows that it was not a case of accidental fall of the child from the lap of any person into the well. It indicates that the child was thrown into the well and, that is why, blood on the scalp was noticed which occurred due to collision with the hard substance within the well. There is no evidence that it was an accidental fall of the child in the well from the lap of any person. Under the circumstances, we are of the considered view that the learned Trial Judge was justified in holding that all the appellants were present and there was pre-arranged plan for the commission of the alleged offence. 20. AS regards the examination of the accused persons under Section 313 Cr.P.C. we find that learned Trial Judge put incriminating evidence and the substance of the accusation to each of the accused persons and there is nothing to show that the accused persons have been prejudiced thereby in any way. Considering the submission of the learned Counsel for the parties and after going through the materials-on-record, we are of the considered view that the appellants in furtherance of the common intention of all caused death of the child by throwing her into the well. There is strong circumstantial evidence pointing at the guilt of the accused persons' and the chain of evidence is complete. 21. WE are of the considered view that there is no ground to interfere with the impugned judgment passed by the learned Trial Judge. The appeals are dismissed. There is strong circumstantial evidence pointing at the guilt of the accused persons' and the chain of evidence is complete. 21. WE are of the considered view that there is no ground to interfere with the impugned judgment passed by the learned Trial Judge. The appeals are dismissed. The appellants are directed to surrender before the learned Trial Court within one month from the date of communication of the order to serve out the sentence. 22. 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.