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2016 DIGILAW 907 (CAL)

Birendra Nath Maity v. State of West Bengal

2016-11-22

JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against judgement and order dated 21st January, 1989 passed by the learned Additional Sessions Judge, Midnapore in Sessions Trial Case No. XIII of 1986 convicting the appellant and one Charubala Maity (since deceased) for commission of offence punishable under Section 498A of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for one year each and to pay a fine of Rs.500/-, in default, to suffer further imprisonment for a period of three months. 2. The prosecution case as alleged against the appellant is to the effect that one Indrani, daughter of Chapala Rani Kar was married to the appellant no.1 in the month of Jaistha 1391 B.S. The appellants demanded dowry and as their demands were not met, the victim Indrani was subjected to mental and physical torture. Indrani reported of such torture to her mother and other relations whenever she visited her parental home. The mother of the victim, Chapala Rani Kar pleaded with the appellants not to torture her daughter but to no avail. Bhabani Kar (PW2), sister of the victim went to the matrimonial home of the victim two days prior to the incident. Bhabani returned to her parental home on 30th April, 1986 at about 8:00 A.M. and told her mother that the appellant no.1 had mercilessly assaulted the victim on 29th April, 1986 and as a result she has lost her senses. On 30th April, 1986 at about 12 noon, one Sukumar Maity, a close neighbour of the appellants informed the mother of the victim that Indrani was suffering from cholera. The mother of the victim and other relations rushed to the matrimonial home of Indrani and found that she had already died. They suspected that the victim committed suicide by taking poison due to the torture meted out by the appellants. On the written complaint of Chapala Rani Kar, the mother of the victim, FIR was registered at Bhupati Nagar Police Station being Bhupati Nagar Police Station Case No. 3 dated 30th April, 1986 under Sections 498A/306 against the appellant no.1 and Charubala Maity, the mother-in-law of the victim. In conclusion of investigation, charge-sheet was filed against the appellants in the instant case and the case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Midnapore for trial and disposal. In conclusion of investigation, charge-sheet was filed against the appellants in the instant case and the case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Midnapore for trial and disposal. Charges were framed under Sections 498A/306 of the Indian Penal Code against the appellants. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as 9 witnesses. The defence of the appellants was one of innocence and false implication. It was the specific defence of the appellants that the victim suffered a natural death due to acute attack of cholera and diarrhoea. In conclusion of trial, the trial court by judgement and order dated 21st January, 1989 acquitted the appellants of the charge under Section 306 IPC. However, the appellants were convicted under Section 498A IPC and sentenced, as aforesaid. Hence, the present appeal has been preferred. 3. During the pendency of appeal I am informed that the appellant no.2 has expired. Hence, the appeal stands abated so far as the appellant no.2 is concerned. 4. Mr. Arnab Sinha, learned advocate appearing for the appellant no.1 submitted that there is no direct evidence on record showing that the victim was subjected to mental and physical torture on account of demand of dowry. The version of the de-facto complainant is a hearsay one and does not inspire confidence. He criticised the evidence of PW2 on the ground that such evidence is highly improbable and ought not to be relied upon. He submitted that the autopsy doctor could not unequivocally state that the bruise marks found on the victim were ante-mortem in nature. Accordingly, he prayed for acquittal of the appellant no.1. 5. On the other hand, Mr. Saryati Dutta, learned advocate appearing for the State, submitted that there is consistent evidence on record establishing physical torture on the victim. PW2 was a direct witness to such torture. Medical evidence has also corroborated the case of torture and therefore, the conviction and sentence ought not to be interfered with. 6. In the light of the aforesaid arguments let me now examine the evidence on record. 7. PW1, Chapala Rani Kar is the mother of the victim. She deposed that Indrani was married to the appellant no.1 three years ago. 6. In the light of the aforesaid arguments let me now examine the evidence on record. 7. PW1, Chapala Rani Kar is the mother of the victim. She deposed that Indrani was married to the appellant no.1 three years ago. Indrani died on a day in the month of Baisakh which was a Wednesday but she could not tell the date. She stated that the appellants used to torture Indarani as they had failed to pay dowry. As dowry was not paid, Indrani stayed at her parental house for six months. Thereafter, a sum of Rs.900/- was paid and she was sent to her matrimonial home. There was a further demand of Rs.1,800/-. Bhabani (PW2), the third daughter of PW1 used to visit the house of the appellants. Bhabani reported to her that during her stay at the house of the appellants she found that the appellants used to torture Indrani. One Monday in the month of Baisakh, Bhabani had gone to the house of the appellants. It was two days before the death of Indrani. Bhabani came back on Wednesday at 10:00 A.M. and informed that Indrani had been mercilessly beaten up on Tuesday. Indrani lost her senses due to such beating. Around 12 noon on Wednesday a person came from the house of the appellants and narrated that Indrani was vomitting and requested them to go to the house of the appellants. PW1 along with other relations went to the house of the appellants. On going there they found that the victim had died. The appellants did not state the reason for the death of Indrani. One Kamal Krishna wrote the FIR and she signed on the said FIR (Exhibit-1). The appellant no.1 has married again. A two-month child was born from the marriage who unfortunately is dead. In cross-examination, she deposed that her husband is present in court. Her husband used to work as a cook in a bulb factory in Calcutta. After the death of her daughter she informed her husband and he came back. Her husband also went to the police station. She did not state in the FIR that there was talk of payment of Rs.1800/- towards dowry. She did not state in the FIR that she paid Rs.900/- to the accused and sent the victim to the matrimonial house in the month of Baisakh. Her husband also went to the police station. She did not state in the FIR that there was talk of payment of Rs.1800/- towards dowry. She did not state in the FIR that she paid Rs.900/- to the accused and sent the victim to the matrimonial house in the month of Baisakh. Before the FIR she did not inform the police regarding torture of her daughter by the appellants. She did not call for any Salish in the village over the incident. 8. PW2, Bhabani Kar is the third daughter of PW1. The victim is her elder sister. She deposed that Indrani was married to appellant no.1 three years ago. After the marriage appellant no.1 did not accept Indrani who stayed in her parental home for about six months. After six months she was taken to the house of the appellant no.1 along with dowry money. Thereafter, PW2 went to the house of the appellants whereupon Charubala Maity, mother-in-law of the victim told her to bring unpaid dowry. One Monday in the month of Boisakh in which Indrani died PW2 went to the house of the appellants. Next day i.e. Tuesday in the noon Indrani was mercilessly beaten by appellant no.1 and she lost her senses. On Wednesday at 10:00 A.M. PW2 returned to her home and narrated the incident to PW1 and others. On that day at about 12 noon one Sukumar came to their house and informed that Indrani was vomiting. On being so informed they rushed to the matrimonial home of Indrani and found that she was lying dead. In cross-examination, she stated that no intimation was sent to her father about the assault of her sister on Wednesday. They took no steps to inform the police after she came back home and informed the incident of assault on Indrani. 9. PW3, Laxmi Bala Jana is a local witness who has been declared hostile. She deposed that she resided 20 cubits from the house of the appellant. Indrani died due to vomiting. On going to the house of the appellants she found Indrani in a groaning stage. She fell on the wooden safe. She was declared hostile. 10. PW4 is the brother-in-law of PW1. He deposed that Indrani was married to the appellant no.1. Indrani died in the month of Boisakh last year. She was beaten by the appellants as dowry could not be paid. She fell on the wooden safe. She was declared hostile. 10. PW4 is the brother-in-law of PW1. He deposed that Indrani was married to the appellant no.1. Indrani died in the month of Boisakh last year. She was beaten by the appellants as dowry could not be paid. Indrani narrated such torture upon her for nonpayment of dowry. On the date on which Indrani died one Sukumar came from the village of the accused persons and reported that she was suffering from diarrhoea and upon hearing such news all of them went to the house of the accused. Bhabani (PW2) had also returned from the house of the accused on that day. She informed that appellant no.1 had assaulted Indrani on the day before i.e. Tuesday. Indrani lost her senses due to such assault. On the date of the incident they found that Indrani was lying dead on the courtyard. 11. PW5 is the sister-in-law of PW1. She deposed that Indrani was married to appellant no.1 and was not accepted initially for non-payment of dowry. Accordingly, she stayed at the parental home for six months. Thereafter, she was sent to the matrimonial home after payment of portion of the dowry. However, she was tortured due to non-payment of remainder of dowry. Indrani died in the month of Boisakh. She had come in the month of Pous to give birth to her child. After delivery of the child she went to the house of the appellants on 2nd Chaitra. Bhabani (PW2) came back on Wednesday and reported that Indrani had been assaulted by the appellants on Tuesday. Indrani had lost her senses due to such assault. On being informed they went to the house of the appellants and found Indrani dead. They were told that Indrani had died due to diarrhoea. However, others said that Indrani died due to taking poison. In cross-examination, she deposed that she is the wife of the cousin of Indrani’s father. They resided separately. However, the houses were inside a common premises. She did not pay any dowry to the accused persons. The father of Indrani had paid dowry. 12. PW6 is the uncle of Indrani. He was present at the time of inquest. He deposed that he found marks of injury on the dead body. He signed on the inquest report. 13. PW7 is the scribe of the FIR. 14. She did not pay any dowry to the accused persons. The father of Indrani had paid dowry. 12. PW6 is the uncle of Indrani. He was present at the time of inquest. He deposed that he found marks of injury on the dead body. He signed on the inquest report. 13. PW7 is the scribe of the FIR. 14. PW8 was the Officer-in-charge of Bhupatinagar Police Station. On 30th April, 1986 at around 19:15 hrs. he received a written complaint from PW1 and started the instant case. He filled up the formal FIR (Exhibit-1/1). He took up the investigation. He visited the place of occurrence. He found the dead body lying in the courtyard. He examined witnesses on the date of occurrence but due to absence of light could not hold inquest. Inquest was held over the dead body on the next day. He found marks of violence and injuries on the dead body. On 22nd May, 1986 he received Post mortem report and submitted charge-sheet. He did not receive report of chemical examination of viscera. The medical officer opined that death was due to taking poison and was ante-mortem in nature. 15. PW9 is the autopsy surgeon. He held post mortem over the dead body of the victim. The body was partially decomposed at the time of post mortem. On examination he found bruises on the back but no other gross injury. Both the lungs were congested. Heart was found empty. The stomach was congested and there was 4 ozs. fluid smelling like kerosene oil. The kerosene smell may have come from poison like besticide or melacide. In his opinion, the death was due to taking of some poison. The exact nature of poison and cause of death was to be confirmed by chemical examination of viscera. He preserved viscera, stomach with its contents, portion of liver, kidney etc. for chemical examination. In cross-examination, he stated that there was no note in the post mortem report whether death was homicidal or suicidal. No size, shape of bruises were recorded in the report. Direction of bruises was also not noted in the report. It was difficult to differentiate whether bruises were before or after the death in view of the fact that the body was in decomposed condition. He further deposed that death due to taking of poison was stated in the report based on circumstances. 16. Direction of bruises was also not noted in the report. It was difficult to differentiate whether bruises were before or after the death in view of the fact that the body was in decomposed condition. He further deposed that death due to taking of poison was stated in the report based on circumstances. 16. From the evidence on record it appears that the victim had been married to appellant no.1 three years ago. She did not go to her matrimonial home for six months as dowry demanded by the appellants was not paid. After a portion of the dowry was paid she was accepted by the appellants at the matrimonial home. However, due to nonpayment of the remainder of dowry she was subjected to torture and finally she died under unnatural circumstances at the matrimonial home. Evidence of PW1, 2, 4 & 5 is unequivocal as to the fact that the victim was not taken by the appellants immediately after marriage and joined the matrimonial home after six months on payment of part of dowry. PW2 is an eyewitness of assault on the victim a day prior to her unnatural death. Her evidence is unshaken in cross-examination and is corroborated by PW1, PW4 and PW5. 17. In view of such evidence-on-record I have no hesitation to hold that the prosecution has been able to prove the ingredients of the offence under Section 498A of the Indian Penal Code beyond reasonable doubt. It has been argued that independent witness has not supported the case. With regard to domestic violence perpetrated upon women at the matrimonial home it is highly unlikely that there would be independent witness. The sole independent witness examined in the instant case who was declared hostile had no reason to play any role in the affairs of the matrimonial house of the victim and therefore, lack of corroboration at her end cannot be a ground to disbelieve the consistent and reliable version coming out from the mouth of the other witnesses. It has been argued that the medical evidence does not support the prosecution case of assault on the victim. One cannot however, lose sight of the fact that the bruises were found on the body of the victim. No doubt, in cross-examination the doctor stated that it is not noted as to whether the bruises were ante-mortem or post-mortem in nature. One cannot however, lose sight of the fact that the bruises were found on the body of the victim. No doubt, in cross-examination the doctor stated that it is not noted as to whether the bruises were ante-mortem or post-mortem in nature. There is, however, no evidence coming on record that there was mishandling of the dead body of the victim so as to probabilise a case of post-mortem bruise on her person. On the other hand, there is cogent evidence-on-record that the victim was mercilessly assaulted on the day prior to the incident which is probabilised by the presence of bruises on her body at the time of death. Hence, I am unable to accept the contention of the learned advocate for the appellant no.1 that the medical evidence has not corroborated the prosecution case. 18. For the aforesaid reasons, I upheld the conviction of the appellant no.1 for commission of offence punishable under Section 498A IPC. 19. Coming to the issue of sentence it has been argued that the incident occurred three decades ago and the appellant no.1 is presently advanced in age. There is ample evidence-on-record that the housewife in the instant case was subjected to systematic torture both mental and physical and one day before her death was brutally assaulted by the appellant no.1. The victim had a two-month old child at that time. Immediately upon the death of the victim, her two-month old child also expired. Offence of such nature does not prompt me to extend the provisions of Probation of Offenders Act to the instant case. However, bearing in mind the present age of the appellant and the fact that three decades had lapsed in the meantime, I reduce the substantive sentence imposed on the appellant no.1 and direct that he shall suffer rigorous imprisonment for six months and pay a fine of Rs.500/-, in default, to suffer further imprisonment for one month. 20. The appeal is accordingly, disposed of. 21. Period of detention suffered by the appellant no.1 during investigation, enquiry and trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure. 22. The bail bond of the appellant no.1 is cancelled and he is directed to surrender before the trial court forthwith and deposit the fine as aforesaid. 21. Period of detention suffered by the appellant no.1 during investigation, enquiry and trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure. 22. The bail bond of the appellant no.1 is cancelled and he is directed to surrender before the trial court forthwith and deposit the fine as aforesaid. If he fails to do so, the trial court shall be at liberty to execute the sentence and realise the fine in accordance with law. 23. The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action. 24. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.