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2012 DIGILAW 558 (CAL)

Manik Paul v. STATE OF WEST BENGAL

2012-06-27

DIPAK SAHA RAY, TAPEN SEN

body2012
JUDGMENT TAPEN SEN, J. 1. This Appeal is directed against the judgment and Order dated 11.6.2007 and 12.6.2007 passed by Sri B.R. De, Additional Sessions Judge, Fast Track Court (1st Court), Jalpaiguri in Sessions Trial No. 11 of 2005 arising out of Sessions Case No. 241 of 2003 in connection with Bhaktinagar P.S. case No. 56 of 1999 dated 16.3.1999 u/s 498 (A)/302 IPC whereby and whereunder the Appellant was found guilty of the offences committed u/s 498 (A) / 302 IPC and was convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- and in default, to undergo rigorous imprisonment for one year for the offence u/s 302 IPC. He was further sentenced to suffer RI for three years and to pay a fine of Rs. 1000/- and in default, to suffer RI for three months for the offence u/s 498 (A) IPC. 2. The facts of this case are narrated hereinafter. On 16.3.1999, at 10.30 A.M., one Gourchandra Majumder (Informant) and father of the deceased, Santana Majumder, lodged an FIR with the Jalpaiguri (Sadar), Bhaktinagar P.S. which was registered as Bhaktinagar P.S. case No. 56 of 1999 dated 16.3.1999 making, inter alia, the following allegations:- It was alleged that the Informant's second daughter, Santana Majumder, aged 20 years, was given in marriage to Manik Paul (Appellant/Accused No. 1 in the FIR) on 30.11.1998. A sum of Rs. 8000/- in cash and ornaments were given to the son-in-law, Manik Paul but after the marriage he started physically torturing him. The Informant's daughter narrated the story of torture to her father a number of times. He visited her matrimonial home on a number of occasions attempting to counsel the in-laws including the husband but they refused to pay any heed and continued to torture his daughter. It was alleged that they sent her to her paternal home to fetch a sum of Rs. 30000/- from her father failing which, they threatened that she would be killed. Being a poor man, the Informant was unable to meet such a demand and as a result, the mother-in-law, (Smt. Mina Paul) the brothers-in-law, (Gopal Paul and Uttam Paul) along with the son-in-law (the Appellant) continued to torture his daughter. 30000/- from her father failing which, they threatened that she would be killed. Being a poor man, the Informant was unable to meet such a demand and as a result, the mother-in-law, (Smt. Mina Paul) the brothers-in-law, (Gopal Paul and Uttam Paul) along with the son-in-law (the Appellant) continued to torture his daughter. Santana would cry from time to time and would come home but on 16.3.1999, her two brothers- in-law whose residence was at New Baribhasa, told the Informant at Vidyachakra Colony at 4 A.M., that his daughter had been admitted to the Hospital. On hearing such news, the Informant went to the Siliguri Sadar Hospital and found that his daughter had been set on fire. He alleged that on 15.3.1999 they (the persons named above) had forcibly caught his daughter and had poured kerosene oil on her body and then, had set her on fire. The Informant's daughter died at the Siliguri Hospital. The Informant alleged that his son-in-law, Manik Paul, his mother and his two brothers were responsible for his daughter's death and that each one of them had provoked and conspired to kill her. 3. On receipt of the said written complaint, the Officer-in-charge Bhaktinagar Police station registered a case and started investigation against all the four accused persons u/s 498A /302 IPC. Charge-sheet was submitted on 26.7.2001 under the said Sections and on receipt of the charge-sheet, the learned SDJM, Jalpaiguri took cognizance of the offences and committed the case to the Court of the learned Sessions Judge, Jalpaiguri on 29.5.2003. After receipt of the records, the learned Additional Sessions Judge, Jalpaiguri transferred the case to the Additional Sessions Judge, Fast Track Court, Jalpaiguri on 9.7.2003 for disposal. Thereafter, formal Charge was framed against the accused Manik Paul and Mina Paul. The prosecution examined 14 witnesses in this case. They are Sri Naresh Roy as PW 1, Sanjib Sarkar as PW 2, Sashi Mohan Barman as PW 3, Biplab Chakraborty as PW 4, Shri Khageshwar Sharma as PW 5, Gauranga Mazumdar, complainant of this case as PW 6, Binoy Gurung as PW-7, Samir Bhattacharjee as PW-8, Nipen Mazumdar as PW 9, Umesh Thakur as PW-10, Suchitra Barai as PW-11, S.I. P.T. Bhutia as PW-12, S.I. Gauranga Ch. Saha as PW-13 and Dr. Saibal Gupta as PW-14. Saha as PW-13 and Dr. Saibal Gupta as PW-14. The written complaint and the signatures thereon were admitted in evidence as Exhibit 1 Series while the Inquest Report was marked as Exhibit 2. The formal FIR was marked Exhibit 3; the dead body Challan as Exhibit 4; the rough sketch map with index as Exhibit 5; the seizure list dated 16.3.1999 as Exhibit 6 and the post mortem report as Exhibit 7. 4. Learned Counsel for the Appellant has submitted that the father of the deceased, Santana Majumder was present at the time when the Inquest Report was being prepared. He submitted that during the time when the Inquest Report was being prepared, he had not said anything with regard to the homicidal tendency of the Appellant. He submitted that the I.O. did not find any marks of injury on the body and such a fact cannot be ignored. 5. He submitted that the statements of the Informant varies from stage to stage because what was described in the FIR was attempted to convey an impression of "Murder" but at the time of the inquest, the impression that was sought to be conveyed was that of an "Accident" and therefore, a doubt is caste on the story of the prosecution. 6. We are not impressed with such a submission because the Inquest Report clearly indicates that it was the husband who described it as an "Accident". It was not the version of the Informant but it was a defence which was attempted to be taken by the Appellant who said that it was an Accident. The Inquest Report also indicates the opinion of the Informant who stated that there were other reasons behind the incident and that his daughter was set on fire following torture in her husband's home. 7. Learned counsel for the Appellant has submitted that in the case of "Murder" and for bringing home a charge under Section 302, the presence of the accused in the place of occurrence has got to be established. According to him, in the entire prosecution case, the presence of the accused has nowhere been established nor is it the case of anybody that the Appellant was "last seen" with the deceased. 8. The learned Counsel then submitted that the manner in which the prosecution has conducted the case cannot be used to fasten guilt on the Appellant. According to him, in the entire prosecution case, the presence of the accused has nowhere been established nor is it the case of anybody that the Appellant was "last seen" with the deceased. 8. The learned Counsel then submitted that the manner in which the prosecution has conducted the case cannot be used to fasten guilt on the Appellant. He submitted that in the Inquest Report, there were no injury marks and therefore, what the Investigating Officer saw, has to be accepted and what he heard cannot be made admissible. What he did see at the time of the Inquest was that there were no injury marks. He has further submitted that the kerosene stove and the clothes of the victims were not produced. 9. We are not impressed with the submissions made on behalf of the Appellant. Let it be recorded that the Inquest was prepared by a Police Officer but when we come to the statement of PW 14, namely Dr. Saibal Gupta, we notice that he was the Doctor who conducted the post mortem report. While examining the dead body, he found not only burn injuries but he also found smell of kerosene emanating from all over the body. He also found evidences of injury caused by blunt force and according to him, death was due to burns associated with blunt injuries being ante mortem and homicidal in nature. This is the statement of a Specialist in the field who actually conducted the post mortem examination and therefore, his submissions cannot be ignored as a mere piece of evidence. 10. Nobody has disputed that the marriage took place on 30.11.1998 and that the occurrence took place on 15.3.1999. In other words, the entire episode took place within a period of three-and-a- half months from the date of the marriage. It is also clear that the episode took place in the matrimonial home of the deceased. The husband has not even attempted to give any plausible explanation as to how such a gruesome incident took place save and except to mechanically state at the time of the Inquest that it had happened on account of an accident arising out of cooking. The absence of any explanation leads to an adverse inference against the husband because the episode took place within his home and within three-and-a-half months of the marriage. The absence of any explanation leads to an adverse inference against the husband because the episode took place within his home and within three-and-a-half months of the marriage. Moreover, the smell of kerosene all over the body compels this Court to hold that when the post mortem report indicates that there was a strong smell of kerosene from all over the body, then it belies the statement/statements of the accused that the deceased had died or had got burnt while cooking. It also rules out the possibility of an accident. Reference in this case may be had from the judgment of the Supreme Court passed in the case of Ashok Kumar Vs. State of Rajasthan reported in 1990 CRI L.J. 2276. 11. Under these circumstances, the emphatic submissions to the effect that the Inquest Report prepared by the ASI did not show any injury and therefore that should be taken as a clinching evidence for purposes of demolishing the story of the prosecution, is not acceptable to this Court. For the reasons stated above, we are not inclined to interfere with the judgment and order passed by the learned Court below and we accordingly uphold the same. The Appeal is Dismissed. The Order passed by this Court on 22.7.2008 keeping the sentence suspended pending hearing of the Appeal, is now recalled and the accused Appellant is directed to be taken into custody for serving out the sentence. No Order as to costs. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.