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2017 DIGILAW 262 (CAL)

Premranjan Adak v. State of West Bengal

2017-03-07

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order of conviction and sentence dated 27.06.1997 passed by the learned Additional Sessions Judge, Tamluk, Midnapore in Sessions Trial No. 4(11) of 1995 convicting the appellant for commission of offence punishable under Section 304(II) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years. 2. The prosecution case, as alleged, against the appellant is to the effect that the wife of the appellant Rebati Adak was brought to Durgachak Hospital in the night of 1/2.11.85 at 3-10 AM by one Satya Brata Bera and others with a history of consumption of oleander seeds for committing suicide and the patient subsequently expired in the said hospital. 3. The medical personnel of the hospital informed officer-in-charge Durgachak Police Station in writing on 02.11.1985 about the death of the deceased. On receipt of written intimation, one U.D. Case being No. 18 dated 02.11.1985 was initiated by the officer-in-charge Durgachak Police Satation and was endorsed to one A.S.I. Pradip Roy (P.W.17) for investigation. A.S.I. Pradip Roy conducted inquest over the dead body of the deceased. The dead body was then sent to Tamluk S.D. hospital for post mortem examination and on 03.04.1986 P.W.17 collected post mortem report of the deceased and the post mortem report along with records of U.D. case was sent to I/C Haldia Police Station for registration of a regular criminal case. Accordingly, I/C Haldia Police Station P.W. 18 started Haldia P.S. Case No. 1 dated 02.05.1986 under Section 302 of Indian Penal Code against the appellant. 4. Investigation of the case was endorsed to S.I. P.K. Biswas (P.W. 14) and subsequently was taken up by S.I. S.K. Badme Islam (P.W.15) who tried to collect viscera report of the victim for sending it for F.S.L. examination but he was informed by the doctor that the viscera had not been kept due to lapse of time. In the course of investigation he collected written opinion of Dr. S.R. Bhowmick who opined that the death of the deceased was homicidal in nature and that rupture of liver and spleen was not possible in a case of poisoning. Thereafter, investigation was taken up by S.I. B.C. Goswami, (P.W 16) who finally submitted charge sheet under Section 302 against appellant. S.R. Bhowmick who opined that the death of the deceased was homicidal in nature and that rupture of liver and spleen was not possible in a case of poisoning. Thereafter, investigation was taken up by S.I. B.C. Goswami, (P.W 16) who finally submitted charge sheet under Section 302 against appellant. The case was committed to the Court of Sessions and subsequently transferred to the Additional Sessions Judge, Tamluk, Purba Medinipur for trial and disposal. Charge was framed under Section 302/201 of Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined eighteen witnesses. The defence did not examine any witness. It was the specific defence of the appellant was that the victim had consumed the oleander seed and the death was a suicidal one. 5. In conclusion of trial the Trial Judge by judgment and order convicted and sentenced the appellant as aforesaid. 6. Mr. Dey, learned counsel for the appellant submits that the plea of suicidal death is supported by the daughter of the victim namely, P.W. 8. He also submits that there is some confusion as to whether the victim had died at the residence or not. It is also argued that there was inordinate delay in registering F.I.R. in the instant case and that the relationship between the couple was good and there was no motive for commission of the offence. Accordingly, he prayed for acquittal of the appellant. 7. Mr. Basu, learned counsel for the State submits that the autopsy surgeon P.W. 13 clearly opined that the rupture of the liver and spleen was due to assault and the death was a homicidal one. Death by poisoning was clearly ruled out by the nature of injury of the victim. Victim was in the family way at the time of death and the suo motu case was registered only upon receipt of the post mortem report disclosing a homicidal death explaining away the delay in registration of the case. 8. Circumstances in the instant case do not support the plea of suicide of the victim and the prosecution case is established beyond reasonable doubt by the medical evidence. He accordingly prayed for dismissal of the case. 9. P.W. I is a neighbour of the appellant. He deposed that the victim had died 10/12 years ago. 8. Circumstances in the instant case do not support the plea of suicide of the victim and the prosecution case is established beyond reasonable doubt by the medical evidence. He accordingly prayed for dismissal of the case. 9. P.W. I is a neighbour of the appellant. He deposed that the victim had died 10/12 years ago. The appellant used to reside with the victim in their village in the house of Kalipada Hajra. At the relevant time the age of eldest daughter of the appellant was about 3/4 years. Hearing cry and weeping he went to the house of the appellant and found that victim was lying in front of the room of the house. He heard the sound of cry at about 2-00/2-30 AM. He had no conversion with the victim. He returned to his home. He could not say whether the victim was conscious or not. On the next date of hearing he heard that the victim was taken to Durgachak State General Hospital. 10. In cross-examination he stated that the relationship between the appellant and the wife was good. 11. P.W. 2 is another neighbour of the appellant. He deposed that the victim had died about 10/11 years ago. The couple used to reside the house of one Kalipada Hajra. In the night he was sleeping in his room. He heard a cry from the room of the appellant. Sudip Manna who is also tenant of Kalipada Hajra also came to the room of the appellant. They found that the victim was lying on the floor. Appellant said that his wife consumed poison. They called one quack doctor, Dr. Mrityunjay Barik, who examined the body of the victim and expressed his inability to cure her and advised to take her to hospital. They took her to the hospital in a van and was declared dead. The appellant afterwards married the younger sister of Rebati. At the relevant point of time the couple had four children. The age of the youngest child was 1 years. The eldest child was about 6 years of age at that time. 12. In cross-examination he stated that on the date of the incident he did not see any quarrel between the appellant and his wife or that the appellant assaulted his wife. 13. P.W. 3 is the mother of the victim. She deposed that Rebati had died 10/11 years ago. 12. In cross-examination he stated that on the date of the incident he did not see any quarrel between the appellant and his wife or that the appellant assaulted his wife. 13. P.W. 3 is the mother of the victim. She deposed that Rebati had died 10/11 years ago. Rebati left behind one son and three daughters and at the time of her death she was pregnant. The appellant told her that Rebati had died by consuming poison. Her grand daughter Pranati Adak also stated that Rebati had died due to consumption of poison. Appellant had afterwards married her youngest daughter. The appellant used to live in a rented house situated 4/5 house from her residence. 14. P.W.4 is the brother of the landlord of the appellant. He deposed that he did not know anything about the incident. He, however, stated that the couple had three daughters and one son. He deposed that Kalipada Hazra was his elder brother. His house was a 3 to 4 minutes walk from that of the appellant. 15. In cross-examination, he stated that Rebati was suffering from various ailments. There was oleander tree in front of the house of Kalipada Hazra. 16. P.W.5 is the landlord of the appellant, Kalipada Hazra. He stated that the couple had three daughters and one son. The couple used to reside as a tenant in his house. He did not ask the appellant as to the cause of death. He was not on visiting terms with the appellant. 17. P.W.6 & 9 have not deposed anything relevant in this case. 18. P.W.7, Sudip Manna is a co-tenant in the house of P.W.5 along with the appellant. There are three rooms in the house which are occupied by three tenants. On the date of the incident at around 1/1.30 A.M. he woke up hearing cry of the appellant and went to his room and found Rebati was lying on the bank of a tank. Rebati was not conscious. He had no personal knowledge about the cause of death or the family life of the appellant. 19. P.W.8, Pranati Adak is the daughter of the couple. She could not state her age at the time of the incident but stated that she was a student of Class-IV. She admitted that her father had remarried the sister of her mother. He had no personal knowledge about the cause of death or the family life of the appellant. 19. P.W.8, Pranati Adak is the daughter of the couple. She could not state her age at the time of the incident but stated that she was a student of Class-IV. She admitted that her father had remarried the sister of her mother. Her mother had taken white substance and on being asked she told her that the doctor had prescribed medicine for her. At 2.30 P.M. her mother took the substance. Her father went to the office and had returned home at 5 P.M. She did not inform her father about the consumption of while coloured substance. She also did not inform the para people about the matter as per doctor's advice. 20. In cross-examination, she stated that she had gone to play before her father returned home and at 8 P.M. had gone to bed. She woke up and found that her mother was in the bank of the tank. Her mother had vomited and there was sign of vomit and stool on her wearing apparels. She stated that her mother used to take medicine for long time. 21. P.W.10 deposed that at the night Rebati died. He went to the spot and heard from Dr. Mrityunjay Barik that the patient had taken poison and would have to be removed to hospital. 22. P.W.11 is a staff of S.D. Hospital and is a witness to the inquest held on the dead body of the victim on 2.11.1985 (Ext.1). She proved her signature on the inquest report (Ext.1/1). 23. P.W.12 is the quack doctor, Dr. Mrityunjay Barik. He deposed that on the fateful day he had come to the house of the appellant and found that the victim was lying on the floor. He advised her to be taken to the hospital. 24. P.W.13 is the autopsy surgeon. He was attached to the Tamluk S.D. Hospital as Medical Officer at the material point of time. He held post mortem examination on the dead body and found the following injuries. On examination he noted as follows: "no apparent external wound was detected. Bloody froth was coming out from the mouth and nose. On dissection liver was found ruptured in several places laterally and posteriorly and also spleen was found ruptured. Blood clot was detected under the right breast. On examination he noted as follows: "no apparent external wound was detected. Bloody froth was coming out from the mouth and nose. On dissection liver was found ruptured in several places laterally and posteriorly and also spleen was found ruptured. Blood clot was detected under the right breast. Peretonial cavity contains about four-ounce of blood and blood clot was found over the transverse me-sentry. Stomach contains about 10 ounce of bloody coloured fluid. No food material is present. Uterus was found gravid, size 10" X 8" contains one male foetus 10" long. Opinion as to the cause of death was due to the effect of injury to liver and spleen, anti-mortem and homicidal in nature." 25. He deposed that this sort of injuries could be caused by assault with hands and legs. Police officer sought his opinion in writing as to whether such injuries could be caused in a case of poising. He opined in the negative. 26. In cross-examination, he stated that he had no special degree or diploma in conducting post mortem examination. He admitted that in case of prolonged malaria, lever and spleen is enlarged. He held post mortem as per inquest report. He admitted that the seeds of oleander trees are poisonous. He admitted that in many cases poising is not detected by chemical analysis. 27. P.W.14 was attached to Haldia P.S. on 2.5.1986 as S.I. of Police. On that date the I.C. Haldia P.S. started suo motu case and endorsed the investigation to him. He proved the formal F.I.R. (Ext.3). He prepared rough sketch map with index of the place of occurrence (Ext.4 and 4/1). He examined witnesses and recorded their statements under Section 161 Cr.P.C. Before starting the specific case, one U.D. Case being No.18 dated 2.11.1985 was started on the complaint of Dr. H. N. Baghchi, M.O., Durgachak State Dispensary. The record of U.D. Case along with post mortem and inquest report was sent to him. On 16.2.1987 he was transferred and the case was handed over to I.C. Haldia P.S. for investigation. It was noted by him during investigation that Autopsy Surgeon should be examined for ascertaining whether the spleen and liver could be ruptured without getting any external injury. From the case diary it appears that he did not make any attempt to send the viscera of the victim for chemical examination. It was noted by him during investigation that Autopsy Surgeon should be examined for ascertaining whether the spleen and liver could be ruptured without getting any external injury. From the case diary it appears that he did not make any attempt to send the viscera of the victim for chemical examination. He could not obtain opinion of doctor during his tenure of investigation as doctor was not available. 28. P.W.15 is the second investigating officer of the instant case. He continued the investigation from P.W.14. He found that post mortem examination was done by Dr. S.P. Bhoumick. He tried to find out the viscera for chemical examination. He did not get the viscera. Doctor stated in writing that viscera was not kept due to lapse of time. He examined staff nurse Pratima Kundu and recorded her statement. He also examined Dr. H.N. Bagchi of Durgachak S.D. Hospital. It was stated that patient was in an unconscious and grasping condition. He took report from Dr. S.R. Bhoumick who stated that death was homicidal in nature and rupture of liver and spleen cannot occur in a case of poising. He made prayer before the Court to tag U.D. Case record with G.R. Case records. Thereafter he got his order of transfer and he endorsed to the case of I.C. for further investigation. 29. P.W.16 is the third investigating officer in the instant case. He tried to collect the bedhead ticket but as there was no system of maintaining bedhead ticket he could not do so. He submitted the charge-sheet. 30. P.W.17 was attached to the Durgachak P.S. as A.S.I. on 2.11.1985. He received complaint send by Dr. H.N. Bagchi of Durgachak S.D. Hospital intimating about the death of Rebati Adak. On receipt of complaint the officer-in-charge started U.D. Case bearing no.18 dated 2.11.1985 which was endorsed to him for investigation. He held inquest over the dead body of Rebati Adak and prepared report (Ext.1). The inquest report was prepared in the presence of witnesses including the doctor. He sent the dead body to autopsy surgeon for ascertaining the cause of death and it was sent through constable Sandip Madak. He send messages to the I.C. Haldia P.S. to inquire into the matter and to inform him about the cause of death. He collected the post mortem report on 3.4.1986. He sent the dead body to autopsy surgeon for ascertaining the cause of death and it was sent through constable Sandip Madak. He send messages to the I.C. Haldia P.S. to inquire into the matter and to inform him about the cause of death. He collected the post mortem report on 3.4.1986. After collection of post mortem report all the papers were sent to I.C. of Haldia P.S. for starting a case. 31. P.W.18 was inspector of police attached to Haldia P.S. On 2.11.1985 he started the suo motu case being Haldia P.S. case No. 1 dated 2.5.1986 under Section 302 of IPC against unknown person. Entire record of U.D. case along with post mortem report, inquest report was handed over by O.C., Durgachak P.S. and upon perusing the materials he started suo motu case. He exhibited the written complaint (Ext.3). He endorsed the case to S.I. P.K. Biswas for investigation. 32. From the evidence on record it appears that in the night between 1st/2nd November, 1985, the victim suffered an unnatural death. The question is whether such unnatural death was due to assault on the victim by the appellant causing rupture of her spleen and liver or she had committed suicide by consuming poisonous seeds as contended by the defence. The defence seeks to draw inspiration from the evidence of P.W.8, daughter of the victim who deposed that her mother had consumed white substance around 2.00/2.30 in the afternoon of the fateful day. Mother of the victim, P.W.3 also stated that her grandmother (P.W.8) had stated to her that the victim had died due to consumption of poison. The aforesaid pieces of evidence, however, has to be tested on the touchstone of the medical opinion of P.W. 13 and other attending facts and circumstances of the case P.W. 13 unequivocally stated that the victim had suffered injuries in her internal organs, namely, liver and spleen and such injuries could be caused by assault alone and not in a case of poising. Such opinion of the expert clearly overrules out any possibility of death by poisoning. Hence, failure to cause chemical examination of viscera does not create any prejudice to the defence in the factual matrix of the case. Such opinion of the expert clearly overrules out any possibility of death by poisoning. Hence, failure to cause chemical examination of viscera does not create any prejudice to the defence in the factual matrix of the case. Moreover, the attending facts and circumstances of the case prompt me to conclude that most of the witnesses in the instant case including the near relations were seeking to hide the truth and screen the appellant from legal punishment as the latter had married the younger sister of the victim after her death. Hence, the witnesses including the relations of the victim went overboard to masquerade a case of homicidal death as one of suicidal poisoning. However, the Court cannot turn its eyes away from the bitter and inconvenient truth of homicidal death of the victim and machenically accept the desperate efforts of all concerned including the relations of the victim to obfuscate the reality by propounding an improbable theory of suicidal poisoning. Apart from the medical evidence, the factual matrix also militates against any case of suicidal poisoning. Version of P.W.8, in this regard, is fraught with contradictions and improbabilities. She claims that her mother took white substance around 2.00-2.30 in the afternoon of the fateful day. If that were so, the victim would have fallen sick soon thereafter. However, it is the version of the appellant during his examination under section 313 Cr.P.C. that the victim had fallen sick late in the night of 1st November, 1985 and started vomiting and defecating and had to be shifted to hospital. The version of P.W.8 that her mother consumed poisonous substance in the afternoon is incompatible with that of the appellant that the victim fell ill and started vomiting late in the night between 1/2nd November, 2015 and not earlier in the day when she is said to have consumed poison. The theory of suicide by poisoning as propounded by the defence, therefore, suffers from innate hollowness and in the face of the clear and unequivocal medical evidence the same cannot be accepted as a reasonable and probable explanation as to the cause of death. On the other hand, it was the appellant and the victim who were only present in the house (apart from the children) when she suffered the brutal internal injuries due to assault. On the other hand, it was the appellant and the victim who were only present in the house (apart from the children) when she suffered the brutal internal injuries due to assault. The appellant has not only failed to explain such injuries but had given a false explanation of suicidal poisoning which fortifies the prosecution case that it was the appellant and the appellant alone who was the author of the brutal injuries leading the homicidal death of victim. 33. A faint plea was raised by the learned counsel for the appellant that the victim had suffered injuries outside her home as her body was found near the bank of the pond as deposed by some of the witnesses. It is possible that subsequent to the injuries suffered by the victim when she had become unconscious she had been brought out of the room but in the face of clear and convincing evidence that she was in the room with her husband when she suffered the homicidal injuries. I am of the opinion that the prosecution case cannot be said to suffer a dent on such score. 34. For the aforesaid reasons, I uphold the conviction and sentence of the appellant. The appeal is dismissed. 35. Bail bond of the appellant is cancelled. He is directed to surrender forthwith before the trial Court and serve out the sentence in accordance with law. 36. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive period of sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. 37. Copy of the judgment along with LCR be sent down to the trial Court at once. 38. Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.