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2013 DIGILAW 145 (CAL)

Cheyfar Ali v. STATE OF WEST BENGAL

2013-03-11

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
JUDGMENT Nadira Patherya, J. 1. This appeal has been filed against the order of conviction and sentence dated 24th November, 2005 and 25th November, 2005 respectively in Sessions Trial No. 10(12)3 passed by the Additional Sessions Judge, Fast Track Court, 2nd Court, Cooch Behar under sections 498A and 306 IPC. By the said judgment the appellant/convicted person was sentenced to rigorous imprisonment for 10 years coupled with payment of a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months. The case of the prosecution is that the appellant inflicted torture upon the victim which drove her to commit suicide. The said incident occurred on 7th June, 2001 and the FIR was lodged by the father of the victim on 9th June, 2001. The FIR was registered and investigation initiated on 7th June, 2001 at 16-00 hours. On completion of investigation charge-sheet was submitted against the appellant-accused person under sections 498A and 306 IPC. Charges were framed under the said sections mentioned above to which the appellant-accused person pleaded "not guilty" and sought trial. 2. In course of trial 17 prosecution witnesses were examined and documents exhibited. 3. On consideration of the evidence and documents exhibited the Additional Sessions Judge found the appellant guilty and passed order of conviction and sentence against the appellant. It is from the said order of conviction and sentence that this appeal has been filed. 4. Counsel for the appellant submits that the FIR filed is not only delayed but is also an afterthought as the same has been filed on receipt of the post-mortem report, this will be evident from the FIR itself. Therefore the case of demand for dowry made out ought not to be relied on and also will not be borne out from the evidence of the prosecution witness. The inquest was conducted on 7th June, 2001 on the basis of information received from PW 2 who is the brother-in-law of the victim and it is on the basis of such information that investigation has also been initiated on the same date. The evidence of PW 2 brother-in-law of the victim, PW 3 sister of the victim and PW 6 mother of the victim cannot be relied on as it suffers from improvements/embellishment. The evidence of PW 2 brother-in-law of the victim, PW 3 sister of the victim and PW 6 mother of the victim cannot be relied on as it suffers from improvements/embellishment. This will appear from the evidence of PW 16, the I.O. He stated that neither of these witnesses in 161 statements have stated before him about the demand of Rs. 10,000/-. The evidence of PW 4 and PW 5 cannot be relied on for corroboration purposes as both witnesses have been declared hostile. The evidence of PW 7 and PW 8 is nothing but hearsay evidence and has not been corroborated by the evidence of any of the other prosecution witnesses, particularly PW 1. 5. PW 6 in her evidence has stated that she heard about the demand of Rs. 10,000/- from her daughter but this was not stated by her before PW 16. In fact she in her cross-examination has categorically stated that she did not state the incident of demanding money to anybody. In fact none of the other prosecution witnesses have also corroborated the statement of PW 6. The inquest was made on 7th June, 2001 and the post-mortem report submitted on 8th June, 2001. The FIR has been filed after the post-mortem report and it is only thereafter that the case of demand of sums has been set out in the FIR. The FIR is not only aggressive in nature but also evidences the intent of the de facto complainant to punish the accused appellant. As the FIR is nothing but an afterthought, the evidence of PW 1 cannot be relied on. As the prosecution was not able to prove its case in respect of sections 498A and 306 IPC and in passing the order of conviction and sentence under the said sections the Court below has committed an error and the order of conviction and sentence be set aside. 6. Counsel for the State in opposing the said appeal submits that the prosecution has been able to establish the nexus between cruelty and suicide. The incident occurred three months after the marriage of the victim and the appellant, therefore the presumption of torture arises under section 113A of the Indian Evidence Act. The demand for money has been proved by the prosecution. Delay in filing of FIR is not always fatal. The incident occurred three months after the marriage of the victim and the appellant, therefore the presumption of torture arises under section 113A of the Indian Evidence Act. The demand for money has been proved by the prosecution. Delay in filing of FIR is not always fatal. In fact the case of demand which is initiated in the FIR has been successfully established by PW 1 in his examination-in-chief and cross-examination. PW 2 has also in his evidence established the demand for money and this has been corroborated by the evidence of PW 6, PW 7 and PW 8. The evidence of PW 2, PW 6, PW 7 and PW 8 in respect of cruelty are reliable pieces of evidence although there is no evidence in respect of assault. Cruelty has not only been established by the prosecution but that cruelty resulted in suicide cannot be doubted, therefore the order of conviction and sentence be not interfered with. 7. Having considered the submissions of the parties and on examination of the evidence so also the exhibits it appears that the incident occurred on 7th June, 2001 and on the basis of information received from PW 2 an inquest was conducted on 7th June, 2001 at 4 PM. The post mortem report was prepared on 8th June, 2001. It is only after the post mortem report was submitted the FIR was filed by the de facto complainant-father on 9th June, 2001. In the FIR the reason for delay has been ascribed to post-mortem examination of the dead. There exists no nexus between the filing of an FIR and the post-mortem report. An FIR is filed independently de hors the surathal report, the inquest report and the post-mortem report and to file the FIR after the post-mortem report evidences that the FIR is nothing but an afterthought. Admittedly on 7th June, 2001 information about the death of the victim was given by PW 2 to the local police authorities and on basis thereof inquest was conducted on the same date. 8. In fact PW 1 in his evidence has stated that on getting the information with regard to demise of the victim he along with his brother PW 7 and some other persons went to the matrimonial house of the victim. There he found the dead body of his daughter. 8. In fact PW 1 in his evidence has stated that on getting the information with regard to demise of the victim he along with his brother PW 7 and some other persons went to the matrimonial house of the victim. There he found the dead body of his daughter. Therefore there is no reason why no FIR could be filed on that very day. It is true that delay in filing of an FIR is not fatal but when the FIR is dependent on any document it loses its spontaneity and sanctity and this has happened in the instant case. 9. In fact on an appreciation of the evidence what emerges is that the case of demand of money in the FIR was not stated by either PW 2 or PW 3 before the I.O. and this has been categorically stated by the I.O. in his cross-examination when he says that PW 2 and PW 3 when examined by him did not state that the appellant had demanded money from the victim. Therefore the evidence of PW 2 and PW 3 to the extent of demand of money by the appellant is an improvement/embellishment and cannot be relied on as it is for the first time in Court that such evidence has been given. PW 4 and PW 5 have been declared as hostile witnesses. The evidence of PW 7 and PW 8 is hearsay evidence as both have stated that they heard of the demand of money from PW 1 the father of the victim who is the elder brother but this has not been corroborated by the evidence of PW 1 therefore the evidence of PW 7 and PW 8 cannot be relied on. In fact PW 1 in his evidence has stated that he did not disclose the incident regarding demand of money prior to the death of the victim. PW 6 the mother of the victim has said that she heard about the demand from her daughter but this fact was not told by her to the I.O. or to anybody else, therefore the said evidence is nothing but an improvement. PW 6 the mother of the victim has said that she heard about the demand from her daughter but this fact was not told by her to the I.O. or to anybody else, therefore the said evidence is nothing but an improvement. In the light of the elimination of the evidence of PW 2, PW 3, PW 4, PW 5, PW 6, PW 7 and PW 8 the only relevant witness whose evidence must be examined closely is PW 1 the father of the victim and de facto complainant. 10. PW 1 has stated in his evidence that the victim told him that the appellant had demanded Rs. 10,000/- and this is reflected in the FIR but the FIR is not a substantive piece of evidence. In the instant case the FIR was filed after the post mortem report was received and is bereft of spontaneity and is an afterthought. Therefore, the evidence in respect of the case made out in the FIR cannot also be of any relevance. In fact it has been admitted by PW 1 in his cross-examination that the incident of demand for money was not disclosed by him prior to the demise of the victim. Exhibit-A is a document dated 7th June, 2001 and bears the signature of PW 1. When shown the said document in cross-examination PW 1 has denied his signature on the said document. This denial has been contradicted by PW 4 who has in cross-examination stated that Exhibit-A was written at the instruction of the father of the victim and was signed by PW 1 in the presence of PW 4. It is true that the evidence of a hostile witness is of no relevance for purposes of corroboration but under section 162 of the Code of Criminal Procedure can be used to contradict a statement. In Exhibit-A PW 1 has categorically stated that the victim died by committing suicide and that he and his relatives have no doubt in this respect. Therefore on 7th June, 2001 no case of demand for sums was alleged by PW 1 against the appellant and this was at a time when articles received by the appellant during the marriage was being returned and has been recorded in the said document. 11. Therefore the evidence of PW 1 on a close scrutiny is marred with doubt and therefore cannot be accepted. 11. Therefore the evidence of PW 1 on a close scrutiny is marred with doubt and therefore cannot be accepted. In view of the aforesaid the prosecution failed to establish its case and the finding of the Court below that the appellant had inflicted torture amounting to cruelty on the victim in the absence of evidence cannot be sustained in the eye of law and accordingly the order of conviction and sentence dated 24th November, 2005 and 25th November, 2005 are set aside and the appeal is allowed. The accused be accordingly released from the correctional home provided he is not required to be in custody in connection with any other case. I agree. Appeal allowed