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2013 DIGILAW 111 (CAL)

Gopal Pal v. State of West Bengal

2013-02-22

Asim Kumar Ray, Nadira Patherya

body2013
JUDGMENT Ray, J. : This appeal is directed against an order of conviction and sentence passed in Sessions Case No. 79(7) of 2005 wherein appellants were sentenced to suffer R.I. for two years and to pay a fine of Rs. 1,000/- in default to suffer R.I. for one month for the offence punishable under Section 498A of the Indian Penal Code and also to suffer R.I. for 10 years and to pay a fine of Rs. 3,000/- each, in default to suffer R.I. for 3 months for the offence punishable under Section 307 of the Indian Penal Code. 2. Factual matrix leading to the initiation of the prosecution case is that Rita Pal got married with accused Gopal Pal 2/3 years ago from the date of filing the FIR by Ava Pal, mother of Rita Pal. Her husband Gopal Pal and mother-in-law Sailabala Pal started physical and mental torture upon her just after a few days of her marriage. She was also assaulted by both of them on several occasions as the de facto complainant, her mother failed to meet the demand of her husband Gopal for payment of Rs. 10,000/-. On 17.9.2000 at night Gopal and his mother forcefully made Rita consume acid as a result she became seriously ill. She was taken to Bethuadahari Hospital and from there she was referred to Saktinagar Hospital and later to N.R.S. Medical College and Hospital on 20.9.2000. 3. On the basis of the written complaint of Ava Pal, Nakashipara Police Station Case No. 180 of 2000 dated 4.11.2000 under Section 498A of Indian Penal Code was started. On completion of investigation of the case chargesheet under Sections 498A/326/307 of IPC was filed against Gopal Pal and his mother Sailabala Pal. Charge under the said Sections of IPC was framed against Gopal Pal and Sailabala Pal. They pleaded not guilty to the said charge and claimed to be tried. 4. In order to bring the offence home to the accused persons prosecution has examined as many as 20 witnesses and in course of examination of prosecution witnesses series of documents have been marked as exhibits. On appreciation of the evidence on record the learned Assistant Sessions Judge, 1st Court, Krishnagar, Nadia has found the appellants guilty, convicted them and passed the impugned sentence. Being aggrieved this appeal is before us. 5. On appreciation of the evidence on record the learned Assistant Sessions Judge, 1st Court, Krishnagar, Nadia has found the appellants guilty, convicted them and passed the impugned sentence. Being aggrieved this appeal is before us. 5. Learned Counsel appearing on behalf of the appellants has contended that the impugned order of conviction and sentence is illegal. It is based on inadmissible evidence but not on material on records. The learned Judge has not considered the case of the defence in its proper perspective and the same has resulted in total miscarriage of justice. It is his further contention that the FIR maker had been to Saktinagar Hospital on 18th September, 2000. She met with her daughter victim Rita Pal. But the first information report was lodged on 4th November, 2000. Such inordinate delay in lodging the FIR is fatal to the prosecution case. It is his further contention that the witnesses who were examined from the side of the prosecution are all relatives of the victim and are interested witnesses. The evidence on record speaks that Gopal took his wife Rita, the victim to hospital to save her. The evidence of P.W.17 Dr. Sovan Biswas was placed by the learned Counsel of the appellant to show that acid entered into the stomach and this suggest that it was consumed but not administered forcefully. The doctor has stated in his evidence that there is no scope for the person like the victim to speak after such intake of acid. The case of the prosecution is full of doubt. Evidence on record cannot be relied on to record an order of conviction and sentence and so may be set aside. 6. Learned Counsel appearing for the State in course of his argument referred to Ext. 4, the statement of the victim which she made before the doctor and police officer and has contended that no question was put to the witness from the side of the defence challenging the admissibility of that document. He supported the order of conviction and sentence. 7. On going through the evidence on record we find that the oral evidence of the prosecution witness may be classified in three categories–I) Evidence of FIR maker Ava Pal–mother of the victim and the victim Rita Pal, II) evidence of the neighbour, III) evidence of doctors and police personnel. Beside the oral evidence there is documentary evidence. 8. 7. On going through the evidence on record we find that the oral evidence of the prosecution witness may be classified in three categories–I) Evidence of FIR maker Ava Pal–mother of the victim and the victim Rita Pal, II) evidence of the neighbour, III) evidence of doctors and police personnel. Beside the oral evidence there is documentary evidence. 8. FIR maker Ava Rani Pal, P.W.1 has stated in her evidence that she gathered knowledge from the para people to the effect that during the stay of her daughter Rita at her matrimonial home several disputes and altercations occurred between her daughter Rita and her in-laws. Her daughter came to know about an illicit relation between her mother-in-law and a Muslim youth for which both her mother-in-law and husband asked her to bring a sum of Rs. 10,000/- which she failed. On her failure to bring such amount on one day in the month of September, 2000 Rita was made to consume acid at the instance of her mother-in-law and husband. Her daughter became seriously ill and was shifted to hospital for treatment. She visited Saktinagar Hospital to see her daughter. The condition of her daughter was serious. She has further stated that the house of her elder brother Jiten Pal is to the south of the house of the appellants. He is a permanent resident of village Jugpur which is also the village of the appellants. Her daughter Rita stayed with her elder brother for about 2 years when she left for Salt Lake at Calcutta to earn a livelihood. 9. In her cross-examination she has stated that she cannot recollect the exact month and year on which it came to her notice that the accused persons/appellants demanded money from her daughter or trouble started over the said issue. The problem over the demand of money came to her knowledge for the first time after 1 and 1/2 month from the date of incident. She has stated that it is a fact that Gopal being aided by the local people made arrangement for shifting her injured daughter to N.R.S. Medical College and Hospital for better treatment. It is also a fact that Gopal took initiative to purchase medicine and also made arrangement of blood for treatment of her daughter. She has stated that it is a fact that Gopal being aided by the local people made arrangement for shifting her injured daughter to N.R.S. Medical College and Hospital for better treatment. It is also a fact that Gopal took initiative to purchase medicine and also made arrangement of blood for treatment of her daughter. It is her specific evidence that after regaining sense her daughter stated the entire incident to her and immediately thereafter she lodged FIR at the police station. In course of her cross-examination one suggestion was given to her from the side of the defence that her daughter consumed acid after writing a suicide note to the effect that" nobody was liable for her death." 10. P.W. No.6 is the victim Rita Pal. She has stated in her evidence that she got married with Gopal in the year 1998. She was subjected to torture or even assaulted for money to be brought from her mother since about 3 months from the date of marriage. Her mother-in-law had an illicit relation with one Md. Goni. She found both of them in a compromising position. Thereafter her husband asked her to bring a sum of Rs.10,000/- from her mother and over the said issue made her to consume acid. Prior to consumption of acid she was compelled to write down a suicidal note to the effect that "nobody was liable for her death." On 17.9.2000 at about 5 a.m. in the early morning her husband and mother-in-law caught hold of her hands and legs and made her consume acid by force. She came out from the room by opening the door and reached near the temple which was in the courtyard and started shouting. Neighbours rushed in and found her husband and mother-in-law making her lie down on the ground to consume lemon juice. She told them that her husband and mother-in-law had compelled her to consume acid by force. She had narrated the entire incident to her doctors i.e. Dr. N. K. Pal and Dr. Sovan Biswas. She has stated further that her husband assaulted her by fist and blows as well as kicked and slapped her on the night of incident. She raised alarm ignoring the threat of the accused persons "not to shout" otherwise she will be killed. She was also scuffling with her husband at that time. That torture continued for 10 minutes. She has stated further that her husband assaulted her by fist and blows as well as kicked and slapped her on the night of incident. She raised alarm ignoring the threat of the accused persons "not to shout" otherwise she will be killed. She was also scuffling with her husband at that time. That torture continued for 10 minutes. It was then 3 a.m. to 4 a.m. in the early dawn. She has stated further that after such assault accused persons made her to write down a suicidal note by force to the effect that nobody is liable for her death and she wrote it out of fear. Subsequently they brought acid and poured the same in her mouth after catching hold of her hands and legs by force. Her mother-in-law caught hold of her hands and legs. Although she put up a stiff resistance, her husband made her open her mouth by pressing both sides of her face and thereafter poured the acid by force. She has also stated that her mother-in-law caught hold of her hands with her hands and poured acid into her mouth while her husband sat over her between the gap of her two legs and caught hold of her hands. At that time all her teeth of both jaws were kept totally closed. She was immensely moving her head at that point of time beside keeping her teeth and jaw closed totally. It is a fact that her forehead, eyes, nose and upper portion of cheeks did not sustain any burn injury due to the said incident. In spite of compelling her to consume acid she did not lose her sense inside the room, but she lost her sense about an hour later. 11. One Niranjan Pal was examined as P.W. No.2 and Arati Pal was examined as P.W. No. 9. They are neighbours of the victim. They gathered knowledge that Rita consumed acid. They were declared hostile. P.W. No.2 was cross-examined from the side of the defence and in his cross-examination he has stated that it was not possible for him to hear anything from Rita about such incident. P.W. No. 9 was not cross-examined from the side of the defence. 12. Other witnesses i.e. P.Ws. 3 to 5, P.W. 7, P.W.8, P.Ws.10 to 14 are neighbours of the victim. They have stated about the matrimonial discord between the victim and the appellants. P.W. No. 9 was not cross-examined from the side of the defence. 12. Other witnesses i.e. P.Ws. 3 to 5, P.W. 7, P.W.8, P.Ws.10 to 14 are neighbours of the victim. They have stated about the matrimonial discord between the victim and the appellants. There is evidence from the neighbour that they had heard from Rita that her mother-in-law and her husband compelled her to consume acid. P.W. 4 Srikanta Pal has stated particularly that it is a fact that Gopal and Rita were residing together as husband and wife. They led a normal conjugal life. He has stated also that at that point of time Gopal, his mother and victim were crying loudly. Rita was crying in pain by shouting in the courtyard while accused Gopal was trying to solace her by providing first aid. 13. P.W. No.5 Anjali Pal has stated that Gopal Pal was present in the house and he with the assistance of some others took Rita to hospital by a van. It is a fact that Gopal used to visit his native village at an interval of a week and used to lead conjugal life with Rita properly. Whenever Gopal used to visit his native village, he used to look after Rita and her mother beside making arrangement for the household needs. She has also stated that before the alleged incident she had no knowledge of existence of difference of opinion between the accused Gopal and Rita. 14. P.W. No. 13 Jiten Pal is the maternal uncle of victim Rita who has stated about the demand of money to the tune of Rs. 10,000/- from the victim by her in-laws. The victim on asking replied that she was made to consume acid by force by both the accused persons. There was hue and cry and neighbours assembled at the spot. Accused persons were present there and inspite of knowing that victim was forced to consume acid by them, they did not rebuke them and assault them. There was no resentment too. He has stated further that he disclosed the entire incident to the mother of the victim on the fateful date and reported the matter verbally at the police station after 3-4 days of the said incident. He has also stated that Gopal was present at Saktinagar Hospital. There was no resentment too. He has stated further that he disclosed the entire incident to the mother of the victim on the fateful date and reported the matter verbally at the police station after 3-4 days of the said incident. He has also stated that Gopal was present at Saktinagar Hospital. He has stated further that police visited their village about 3-4 days after the said incident and enquired about the incident. His wife disclosed the incident before the concerned police officer. P.W. No. 14 has stated in his evidence that he did not notice any resentment amongst the persons present at the spot against any of the accused persons. 15. P.W. No. 15 is doctor Sovan Kanta Sen. In his cross-examination he has stated that he has no specific evidence to state that he really examined and treated Rita Pal on 17.9.2000 as in-charge of the hospital. There were four other medical officers in the said hospital. P.W. 16 Dr. Tarun Kanti Ghosh has stated that on 18.9.2000 he was posted in the District Hospital as Superintendent. On that day one Rita Pal was forwarded from Bethuadhori Block Primary Health Centre. She was admitted in the hospital. On 18.9.2000 he examined her and found her to be attacked with Haemolysis (vomiting of blood which is only in case of a patient having add burn). There was mark of the acid burn injury around the mouth of the said victim. The condition of the patient was critical so she was referred to N.R.S. Medical College and Hospital for better treatment. Ext.9 is the treatment sheet of the victim which bears endorsement of one Gopal on its second page. He has stated that though it is very reasonable that both marks of burn injuries and other injuries to be present on the person of the victim who might have been made to consume acid by force pressing her cheeks, yet in the present instance no such sign of injury or acid burn of other portion of the person was noticed. He did not notice any marks of injuries on the cheek of the patient. 16. P.W. No. 17 Dr. Sovan Biswas. He has stated that patient Rita Pal was admitted in the hospital with history of intake of acid. He did not notice any marks of injuries on the cheek of the patient. 16. P.W. No. 17 Dr. Sovan Biswas. He has stated that patient Rita Pal was admitted in the hospital with history of intake of acid. It is a fact that in the present incident the quantity of acid entered into the stomach and it suggest that if such amount of acid was poured into the mouth or intaken, then firstly the tongue and thereafter pharynx and subsequently the other portions of her internal organ leading to her stomach would be damaged. It is a fact that immediately after intake of such acid there is practically no scope for such a patient to speak. It is generally natural to hold that in case of making a person to consume acid by force against his wishes will obviously cause external burn injury of acid on his face and other portion of her person. 17. P.W. No. 18 Dr. Naba Kumar Pal is also a Medical Officer who was attached to N.R.S. Medical College and Hospital on 28.9.2000 and stated about the treatment of the patient Rita Pal, the victim. 18. P.W. 19 is the Investigating Officer of the case. 19. It is an admitted fact that on 17.9.2000 at dawn the victim sustained acid burn injury in her mouth while she was in the company of her husband and mother-in-law in her matrimonial home at village Jugpur. On appreciation and analysis of the evidence on record our endeavour would be to arrive at a finding as to whether the evidence is of 'quality-evidence' or otherwise meaning thereby suffering from doubt. 20. Regarding mental and physical torture i.e. to say cruelty meted out to the victim the evidence on record has projected non-rhythmic version/ contradictory version. As per victim torture on her at the instance of her husband and mother-in-law began within three months of her marriage whereas her mother, the FIR maker has not stated as to when such torture started. She has rather said that she gathered knowledge from para people to the effect that on several occasion disputes and altercation took place between her daughter and her-in-laws. It is worthy to note that no further narration is there in her evidence as to the kind of torture. It is non-specific in it's true sense. Moreover the neighbour's evidence is missing. It is worthy to note that no further narration is there in her evidence as to the kind of torture. It is non-specific in it's true sense. Moreover the neighbour's evidence is missing. It does not lend support to the FIR maker as nowhere in their evidence they have stated that they reported the torture on the victim to her. The victim has stated that she was assaulted by her husband by fists and blows and also he kicked and slapped her on the date of incident i.e. on 17.9.2000. But there is no iota of evidence from doctors regarding any marks of injury of such assault. The bed head tickets of victim is also silent to any marks of injury of the victim. 21. The second phase of evidence regarding torture seems to be peeping out from the demand of money to the tune of Rs. 10,000/- by the husband. That demand of money stems from an affair of the mother-in-law of the victim with a youth of another religion. The victim was asked to bring the aforesaid sum from her mother as she witnessed the affair. This evidence is too confusing. Is it normal human behaviour to put a non-wrongdoer on pressure instead of putting pressure on the wrongdoer? The wrongdoer was either the mother-in-law or the youth. But it is unbelievable that the victim would be targeted for money by the husband for the victim having knowledge of an affair of his mother. This evidence appears to be unsound and does not come to the aid of the prosecution to cover a case of cruelty on the victim at the instance of the appellants. 22. On a close reading of the oral testimony of two prosecution witnesses, namely, Srikanta Pal and Anjali Pal who are relatives of the victim it transpires that the relation between the victim and her husband was cordial. They used to lead a normal conjugal life. It has come in evidence that the husband Gopal was working in Calcutta. He used to visit his native place at regular interval and used to look after his wife/victim and mother properly beside making arrangement for the household needs. They used to lead a normal conjugal life. It has come in evidence that the husband Gopal was working in Calcutta. He used to visit his native place at regular interval and used to look after his wife/victim and mother properly beside making arrangement for the household needs. The evidence of the mother of the victim has put a death nail to the case of torture saying she came to know about the demand of money for the first time after 1 and 1/2 month from the date of incident. The overall evidence on record is very much confusing and not free from the cloud of doubt. It is unsafe to rely on it to record a finding against the appellants husband and mother-in-law. 23. Regarding administration of acid the victim is the best witness to enlighten the same. We have placed above the relevant part of the evidence and the version of the victim is self contradictory. Once she has stated that her mother-in-law caught hold of her hands and legs. Her husband made her to open her closed mouth by applying force and thereafter poured acid in the mouth. Subsequently, she has stated just opposite to it stating that her mother-in-law caught hold of her hands and legs and poured acid in her mouth while the husband was sitting over her between the gap of her two legs who too caught hold of her hands. Can a person catch hold of both hands and legs of a person then pour acid in her mouth? This evidence itself is doubtful. 24. There is evidence further to the effect that she was immensely moving her head. She put up stiff resistance beside keeping her teeth and both jaws totally closed but she did not sustain acid burn injury on her forehead, eyes, nose and upper portion of cheeks. It is now pertinent to place our sight on the evidence of Dr. Ghosh, P.W.16, Dr. Biswas, P.W.17 and they have stated that it is natural to sustain acid burn injury on face and other portion of the body if a person is forced to consume acid. 25. The victim has stated further that she told the neighbour that her husband and mother-in-law compelled her to consume acid by force. The neighbours have also stated that victim has narrated the administration of acid in her mouth by the appellants by force. 25. The victim has stated further that she told the neighbour that her husband and mother-in-law compelled her to consume acid by force. The neighbours have also stated that victim has narrated the administration of acid in her mouth by the appellants by force. But Dr. Biswas has made it clear in his evidence that there was no scope to speak immediately after intake of acid which was entered into the stomach damaging tongue, pharynx and other portion of internal organ leading to her stomach. 26. Jiten Pal, maternal uncle of victim is a closed door neighbour of the appellants who rushed to the spot immediate after the incident. He came to know of the administration of acid in the mouth of victim by her husband and mother-in-law from the victim. He disclosed the entire incident to the mother of the victim, the FIR maker on the fateful date and reported the matter verbally at the police station after 3/4 days from the date of incident. But the fact remains that mother was inactive. She did not lodge FIR though she was posted with the incident just after the incident. The FIR was lodged after 1 and 1/2 month from the date of incident. This action on the part of the FIR maker may be an afterthought. 27. A suicidal note/Ext.A is on record. The victim has claimed in her evidence that she was mercilessly assaulted for 10 minutes by her husband and then forced to write it just before she was administered with acid. It is in clear handwriting and steady hand which gives an indication that probably it was not written under threat following an alleged incident of physical torture. We find a speaking link with Ext.A with the evidence of hostile witnesses where they have stated that the victim has consumed acid. The same is also strengthened with the support of the fact that FIR was not lodged at the earliest opportunity though the victim's mother was informed of the incident on the fateful day by her brother, Jiten Pal. This reasoning is also time tested by the act of the local police who did not act immediately knowing of the incident as reported by the neighbour. This reasoning is also time tested by the act of the local police who did not act immediately knowing of the incident as reported by the neighbour. There is another supporting stand to this reasoning as the relative and other neighbour who rushed to the place of incident were not perturbed with the alleged wrong so grievous in nature by the appellants. They did not express their anguish against them who were present there though this should have been the reaction of normal human conduct specially that of the relatives. 28. On appreciation of the materials-on-record we find that the evidence is vague, contradictory, confusing and non-specific. It does not inspire confidence. It breeds doubt to question the prosecution case. 29. In the light of the discussions made above we find reasons and ample reasons to hold that the prosecution has failed to establish the guilt so far as the appellants are concerned. The trial Court has committed an error in convicting them under Sections 498A/307 of the Indian Penal Code and sentencing them thereunder. We set aside the order of conviction and sentence passed by the learned Assistant Sessions Judge, 1st Court, Krishnagar, Nadia. In the result, the appeal is allowed. The appellants be released forthwith and set at liberty, if not wanted in connection with any other case. Bond, if any be stood cancelled. Patherya, J. : I agree.