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2015 DIGILAW 627 (CAL)

Uttam Mallick @ Dom v. State of West Bengal

2015-07-29

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. In this appeal the judgment and order of conviction dated 19th February, 2006 passed by Ld. 3rd Additional Fast Track, District and Sessions Court, Siliguri convicting the appellants under Sections 498A and 304B of the Indian Penal Code is under challenge. By the impugned judgment and order of the Ld. Trial Court the appellants were sentenced to suffer rigorous imprisonment for seven years for committing the offence under Section 304B of the Indian Penal Code and further sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs. 5000/- each, in default to suffer rigorous imprisonment for three months for committing offence under Section 498A of Indian Penal Code. The Sessions Trial Case No. 25 of 2003 was disposed of with the above directions. 2. Sri Debabrata Acharyya, Ld. Counsel appearing for the appellants submits that in so far as the appellant no. 2 is concerned, that is Kishan Mallick, son of the appellant no. 1, Uttam Mallick alias Dom, the appellant no. 2 has already served out his period of sentence. Therefore, Ld. Counsel presses the present appeal only in respect of the appellant no. 1 and not qua the appellant no. 2. 3. With respect to the appellant no. 1 Sri Acharyya, Ld. Counsel submits that the complaint has been filed by one Maheshwar Bansfore, the father of the deceased, Mahaji Bansfore who was married to the appellant no. 2, Kishan Mallick. According to the complaint lodged on the 22nd of May, 2000 the parties were married under Hindu rites in the year 1994. Out of the wedding the couple had a male child. 4. It is further alleged in the complaint that for the past 2 to 5 months both the father-in-law, that is the appellant no. 1, Uttam Mallick alias Dom and the appellant no. 2, that is the husband, used to torture his daughter and such torture was complained of by the daughter to her father. On 22nd May, 2000 at around 10 am the complainant, Maheswar Bansfore was informed that his daughter Mahaji Bansfore has been burnt and admitted to hospital. Immediately thereafter Maheswar went to Siliguri Sub-Divisional Hospital and found his daughter dead. He was informed by other persons that his daughter was burnt at around 12 in the night. 5. On 22nd May, 2000 at around 10 am the complainant, Maheswar Bansfore was informed that his daughter Mahaji Bansfore has been burnt and admitted to hospital. Immediately thereafter Maheswar went to Siliguri Sub-Divisional Hospital and found his daughter dead. He was informed by other persons that his daughter was burnt at around 12 in the night. 5. No information regarding the incident was communicated to Maheswar by the appellants and therefore, he had every reason to believe that Uttam, the appellant no. 1, his wife and the husband of his daughter, Kishan conspired and burnt her to death. 6. The First Information Report was registered on the same date corresponding to GR Case No. 483 of 2000 under Sections 498A and 304B of the Indian Penal Code. Charge-sheet was thereafter submitted and a total of 16 witnesses for the prosecution were examined. 7. Sri Acharyya, Ld. Counsel further submits that from the evidence of PW1, the complainant, it does not transpire that any demand for dowry was made by the appellant no. 1, Uttam. The evidence of PW1 regarding the incident of 22nd May, 2000 is only hearsay. It does not transpire from the evidence of PW1 that he had any direct knowledge about the incident of 22nd May, 2000. PW1 has only stated that his daughter complained to him regarding demand for dowry and torture by the appellant nos. 1 and 2. 8. Taking this Court to the evidence of PW2, Sri Acharyya, Ld. Counsel points out that such evidence is contradictory. At one point PW2 states that he saw the victim burning and, on the other hand, he says that he saw the victim in the hospital. From the evidence of PW2 it also transpires that there is no direct evidence of any demand for dowry made by the appellant no. 1 and there is also no complaint regarding torture by the appellant no. 1. 9. PW3 is the seizure list witness. Taking this Court to the evidence of PW5 who is a co-worker with Uttam, the appellant no. 1 at Siliguri Municipality, Sri Acharyya argues that PW5 states that at the time of the fateful incident the accused persons were present in the house. However, according to PW5, there was no quarrel at the house of the accused persons preceding the fatal incident. 10. 1 at Siliguri Municipality, Sri Acharyya argues that PW5 states that at the time of the fateful incident the accused persons were present in the house. However, according to PW5, there was no quarrel at the house of the accused persons preceding the fatal incident. 10. PW6 was declared hostile and PW7 is the police officer who was present at the inquest. PW6, a local witness although declared hostile, according to Sri Acharyya, does not speak of any cruelty or torture inflicted upon the deceased by the accused persons, particularly the appellant no. 1. 11. Also taking this Court to the evidence of PW7, Sri Acharyya points out that the seized articles were neither sealed nor labelled. However, PW9 states that the wife of the appellant no. 1, Uttam opened the door of the room in which the deceased was lying with her husband, appellant no. 2 and their son. On opening the door with force the wife of the appellant no. 1 found that the deceased was lying in the bed in a burning condition. 12. PW10 is a neighbour who was declared hostile. PW10 who claims to have stayed in the same locality as the appellant no. 1 does not state anything about any torture inflicted on the deceased by the accused persons. 13. PW11 is a home guard who was present at the inquest. PW12 signed on the seizure list but did not witness the incident. 14. PW13 is the Post Mortem Doctor who in his report has stated that the burn injuries were inflicted prior to assault upon the deceased. The injuries were caused by hard and blunt substance and were ante-mortem in nature. 15. PW14 is the second investigating officer who completed the investigation and submitted the charge-sheet. PW15 is the first investigating officer who seized some burnt pieces of cotton and one trouser. PW15 states that the deceased was lying in a burning condition and the appellant no. 2, her husband was found absent through a window at the rear side of the room. 16. Sri Acharyya, Ld. Counsel further submits that in the inquest conducted by PW16 no marks of injuries were found on the deceased. It is the specific case of Sri Acharyya that the appellant no. 1 was sleeping in a separate room at the time of the incident. 16. Sri Acharyya, Ld. Counsel further submits that in the inquest conducted by PW16 no marks of injuries were found on the deceased. It is the specific case of Sri Acharyya that the appellant no. 1 was sleeping in a separate room at the time of the incident. The inquest report does not mention the name of PW2, who is the brother of the complainant and uncle of the deceased in the room following the incident. 17. Sri Acharyya therefore makes the primary point that both the appellant no.1 and his wife, being the parents-in-law of the deceased were sleeping in a separate room at the time of the incident. Such fact would emerge from a look at the sketch map which is a part of the records. Therefore, according to Sri Acharyya if the Ld. Trial Court could acquit the mother-in-law of the deceased of the charges, the same yardstick ought to have been applied in respect of the appellant no. 1, her husband. In such premises the appellant no. 1 is entitled to an order of acquittal. 18. Sri Acharyya makes the second point that there is no evidence of any torture by the appellant no. 1 upon the deceased. There is also no evidence that there was a demand for dowry by the appellant no. 1 from the complainant at the time of marriage. 19. In support of his arguments Sri Acharyya relies upon the following decisions:- (i). 2011 (3) C. Cr LR (SC) 480 (at paras 6, 8 and 9) in the matter of Gurdeep Singh v. State of Punjab & Ors.; (ii). 2011 (2) C. Cr LR (SC) 591 (at paras 4 and 5) in the matter of Shindo Alias Sawinder Kaur & anr. v. State of Punjab; and (iii). 2010 (3) C. Cr LR (SC) 240 (at paras 14, 15 and 18) in the matter of Durga Prasad & Anr. v. State of M.P. 20. Per contra, Mrs. Rituparna De (Ghose), Ld. Counsel for the State submits that although the independent witnesses have been declared hostile, such independent witnesses have stated in their evidence regarding dowry demand by the appellants. Since the marriage took place in the year 1996 and death occurred in the year 2000, i.e. within a span of four years there arises a presumption regarding complicity of the appellants in the death of the victim. 21. Since the marriage took place in the year 1996 and death occurred in the year 2000, i.e. within a span of four years there arises a presumption regarding complicity of the appellants in the death of the victim. 21. Relying heavily on the evidence of PW1 Ld. State Counsel argues that both the cause of death and the demand for dowry accompanied by torture have been clearly testified to by PW1, the complainant. According to Ld. State Counsel, PW2 has clearly narrated the incident and PW3, who is the seizure witness, has stated that part of the burning saree was seized. Therefore, the incident stands confirmed. 22. Although PW9 has been declared hostile, the death of the deceased due to burns has been corroborated. PW7 has also corroborated the inquest report and attributed the death to burn injuries. 23. Ld. State Counsel strongly argues that the evidence shows complicity of the in-laws of the deceased girl in her unnatural death and, therefore conviction under Section 304B must be sustained. 24. Having heard the parties and considering the materials on record this Court is satisfied that so far as the appellant no.1 is concerned there is no proximate nexus linking the appellant no. 1 with the commission of the incident. From a bare look at the sketch map it will be seen that the place of occurrence being the bedroom of the deceased along with her husband, Kishan is separate and marked with the letter A. The bedroom of the appellant no. 1 along with his wife is adjacent and separate and marked with letter B. 25. This Court also considers that the incident having occurred late in the night and the investigation report submitted by the investigating officer points to the fact that at about 12:00 in the night the mother-in-law of the deceased, the wife of the appellant no. 1 shouted 'fire, fire'. Thereafter, the mother-in-law of the deceased entered the room and saw the body of the deceased burnt. 26. It is also evident from the investigation report that the father-in-law, that is the appellant no. 1, the mother-in-law and sister-in-law of the deceased were in their separate room at the time of the incident. The husband of the deceased had fled on the entry of the ladies in the room at the time of the incident. 26. It is also evident from the investigation report that the father-in-law, that is the appellant no. 1, the mother-in-law and sister-in-law of the deceased were in their separate room at the time of the incident. The husband of the deceased had fled on the entry of the ladies in the room at the time of the incident. The ladies namely, Promila Chowdhury, Gita Mallick and Shanti Mallick thereafter took the deceased to the hospital where she was declared by the doctor as brought dead. 27. This Court also notices the evidence of PW9, although declared hostile, that at the time of the incident the mother-in-law of the deceased who is the wife of the appellant no. 1 forcibly opened the door of the room and found the deceased burnt. It is also noticed in the evidence that the prime accused, the husband, the appellant no. 2 escaped through a window at the rear side of the room. 28. With regard to demand for dowry it is the evidence of PW1, the complainant that cash, gold and other articles were given at the time of the marriage out of his own accord. Therefore, this Court finds substance in the argument of Ld. Counsel for the appellant no. 1 that there is no proximate nexus of the appellant no. 1 either with the incident on the fateful night or with any demand for dowry and torture regarding which there is also no direct evidence against the appellant no. 1. 29. This Court is also of the opinion that the Ld. Trial Court was guided by technical considerations as emanating from the postmortem report, the First Information Report and also the evidence of the complainant and his brother, the PWs. 1 and 2 without exploring the proximate nexus of the appellant no. 1 with the crime. 30. It is also the view of this Court that the Ld. Trial Court ought to have applied the same yardstick in respect of the appellant no. 1 while acquitting his wife and the mother-in-law, Gita Mallick alias Dom since both the mother-in-law and her husband stood on an equal footing. 31. This Court is therefore satisfied that the judgment and order of conviction against the appellant no. 1 deserves to be set aside. 32. CRA 113 of 2007 stands allowed to the above extent. The appellant no. 31. This Court is therefore satisfied that the judgment and order of conviction against the appellant no. 1 deserves to be set aside. 32. CRA 113 of 2007 stands allowed to the above extent. The appellant no. 1, Uttam Mallick shall be discharged from his bail bond forthwith. 33. Let the records be sent down to the Ld. Trial Court along with a copy of this judgment.