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2020 DIGILAW 250 (CAL)

Pintu Mondal v. State Of West Bengal

2020-02-19

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 27.08.2013 and 29.08.2013 passed by the learned Additional Sessions Judge, Lalbagh, Murshidabad in Sessions Trial No. 3(11)/2010 arising out of Sessions Case No.70 of 2010 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-. 2. Rimi Bibi was married to the appellant Pintu Mondal three years prior to the incident. Soon after the marriage it is alleged Rimi was subjected to torture by the appellant and other in-laws. She was driven out of the matrimonial home. She took refuge at her mother's residence. Unable to maintain herself, she instituted maintenance proceeding against the appellant. Appellant did not make payment and was arrested in connection with such proceeding. Subsequently, a rapprochement was arrived at and Rimi upon selling her ornaments procured the release of the appellant. Thereafter, the appellant off and on visited Rimi at her parental home and she became pregnant. 3. In the afternoon of 07.03.2010 the appellant took Rimi from her parental home to visit his maternal grandmother's house. Rimi did not return that night. In the next morning her dead body was found by a young boy, Sarikul Islam (PW 8) at Later Math in the village of Sabjipara. 4. Memjan Bibi, (PW 4), cousin of the deceased heard the news and identified the victim. Mother of the victim, Molejan Bewa (PW1) was informed. She came to the place of occurrence. Suspecting that the victim had been murdered by the appellant with the help of others, she lodged written complaint at Islampur Police Station resulting in registration of Islampur Police Station Case No.101/10 dated 08.03.2010 against the appellant and other in-laws. 5. In conclusion of the investigation charge sheet was filed and charge was framed against the appellant only under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Prosecution examined 17 witnesses and exhibited a number of documents. In conclusion of trial, the learned Judge by the impugned judgment and order dated 27.08.2013 and 29.08.2013 convicted and sentenced the appellant, as aforesaid. 6. Mr. Chatterjee appearing for the appellant submitted that the prosecution case developed in court is at variance to that alleged in the FIR. Prosecution examined 17 witnesses and exhibited a number of documents. In conclusion of trial, the learned Judge by the impugned judgment and order dated 27.08.2013 and 29.08.2013 convicted and sentenced the appellant, as aforesaid. 6. Mr. Chatterjee appearing for the appellant submitted that the prosecution case developed in court is at variance to that alleged in the FIR. Evidence of PW 1 and PW 2 with regard to the appellant taking the victim from her maternal home on 07.03.2010 is highly unreliable. PW 2 was examined in court for the first time. No FSL report was produced to court to show that the seized articles particularly the knife, wearing apparels bore blood stains. Hence, the chain of circumstances relied by the prosecution have not been proved and the appellant is entitled to an order of acquittal. 7. Mr. Bapuli with Mr. Bhattacharya appearing for the State argued that the prosecution has been able to establish all the circumstances which unerringly point to the guilt of the appellant. The appellant was put behind bars at the behest of the deceased, his estranged wife. Upon his release he used to visit his wife at her maternal home and take her out for trips. She became pregnant. On the fateful day i.e. 07.03.2010 in the afternoon he took her away from her maternal home on the excuse of taking her to his maternal grandmother's house. Since then the victim was missing. Finally her dead body was found in a field near the house of the maternal grandmother of the appellant. On the leading statement of the appellant the weapon of offence and wearing apparels were recovered from the latrine of his grandmother's house. These circumstances clearly establish his guilt beyond doubt and the appeal is liable to be dismissed. 8. Let me see whether prosecution has been able to prove the aforesaid circumstances against the appellant or not. 9. Pw 1 is the mother of the deceased. She deposed Rimi was married to the appellant three years prior to the incident. Rimi was subjected to physical and mental torture by the appellant and in-laws. Finally she was driven out from her matrimonial home. Victim took shelter in her house and instituted maintenance case against the appellant. The appellant was arrested in connection with that case and detained in jail. Rimi was subjected to physical and mental torture by the appellant and in-laws. Finally she was driven out from her matrimonial home. Victim took shelter in her house and instituted maintenance case against the appellant. The appellant was arrested in connection with that case and detained in jail. On the request of the parents of the appellant her daughter sold gold ornaments and procured the release of the appellant from jail. The appellant had assured he would bear the maintenance of his wife. Subsequently, the appellant used to come to her residence and took the victim to various places. A child was conceived due to such association. On 07.03.2010 the appellant took away the victim in the evening stating he was taking her to his maternal grandmother's house. Next morning, she received information from PW 4 that dead body of the deceased was found in the field of Later Math in village Sabjipara. She went to the spot and identified the dead body of her daughter. She lodged written complaint which was scribed by Rustom Mondal (PW 3). She was a signatory to seizure list regarding wearing apparels of the deceased. 10. Tamal Mondal (PW 2) was a neighbour of PW 1. He corroborated the evidence of PW1 and deposed on 07.03.2010 he saw Pintu take Rimi from her parental home. Next day he received information that Rimi had been murdered at Borakali. In cross-examination he admitted that he was not examined by police and had stated the aforesaid facts for the first time in court. 11. Memjan Bibi (PW 4), is the cousin of the deceased. She was residing at her matrimonial home at Sabjipara Borakali, i.e. near the place where the dead body of the victim was found. She corroborated the evidence of PW 1, mother of the deceased. In cross-examination she stated she had not met the deceased for the last one year. 12. Pw 6 to PW 8 are local villagers who were present at the time when the dead body of the deceased was recovered from the cabbage field at Sabjipara. 13. Pw 9 and PW 12 are witnesses to the seizure of a knife and wearing apparels of the accused. The articles were seized from the latrine of Shakimun Bewa, grandmother of the appellant. They proved their signatures on the seizure list. 14. 13. Pw 9 and PW 12 are witnesses to the seizure of a knife and wearing apparels of the accused. The articles were seized from the latrine of Shakimun Bewa, grandmother of the appellant. They proved their signatures on the seizure list. 14. Pw 9 in cross-examination stated that knife was recovered from the house and not the place where shirt was recovered. 15. Pw 10 is the witness to the seizure of the ladies' footwear from the place of occurrence. 16. Pw 13 is the post mortem doctor who found the following injuries:- "1. Linear cut injury over the next at the level of Thyroid which was about two inch superficial length and one inch deep penetrated. 2. One inch deep penetrated injury behind the right ear extending up to the chin with rupture of trachea and injury to the Carotid artery at the right side & blood was present on the neck and thorax. 3. Clenched fist with cabbage leaf in right hand. 4. Uterus size was five months pregnancy with dead fetus of approximate gestational age of five months." 17. He opined that the death was due to cardio respiratory failure in the case of haemorrage and neurogenic shock due to multiple injuries. 18. Pw 15 is the investigating officer in the case. Motive of crime:- 19. From the evidence of PWs 1, 2 and 4 it appears that the appellant committed the murder in order to avoid paying maintenance to the deceased. These witnesses deposed soon after the marriage deceased was driven out of the matrimonial home over demands of dowry. Unable to maintain herself she instituted a maintenance case and the appellant was arrested. Parents of the appellant assured that he would maintain his wife and consequentially upon selling her gold ornaments the deceased secured the release of the appellant. It is most improbable that a destitute woman who was seeking maintenance from her husband would sell her gold ornaments to secure his release without maintenance dues being cleared. Be that as it may, there is no evidence on record upon release the appellant had failed or neglected to take care of his wife. On the other hand, PW 1 sought to make out a case of warm and friendly relation between the couple. Be that as it may, there is no evidence on record upon release the appellant had failed or neglected to take care of his wife. On the other hand, PW 1 sought to make out a case of warm and friendly relation between the couple. She claimed the appellant used to regularly take his wife for trips and due to their intimacy the victim had become pregnant. In the absence of any grievance on the part of PW 1 and others with regard to refusal and neglect of the appellant to maintain his wife after his release from jail I find it difficult to accept the prosecution case that he did away with his wife in order to avoid paying maintenance to her. Moreover, it is the prosecution case the victim was in the family way when she was murdered. It was tendered by PW 1 that her daughter was pregnant with the appellant's child. It is nobody's case the appellant suspected the paternity of the child in the womb of the victim. If that were so, would the appellant murder his pregnant wife and kill his unborn child merely to avoid paying maintenance to her? Such conduct is highly improbable and does not lay down a convincing foundation for murdering the housewife by the husband. Last seen theory:- 20. The most vital plank of the prosecution case is that on 07.03.2010 in the evening the appellant had taken out his wife from the parental home stating that they were going to his grandmother's house. This fact is sought to be proved from the evidence of PW 1, 2 and 4. PW 1, mother of the deceased deposed appellant used to regularly come to her house and used to take out his daughter for trips. I do not given much credence to the evidence of PW 4, married cousin of the deceased as in cross-examination she stated she had not met the deceased for the last one year prior to the incident. Even the evidence of PW 2 with regard to the fact that he had seen the deceased leave with the appellant from her parental home on the fateful day ought to have been taken with a pinch of salt. The said witness had not been interrogated by police and stated such fact for the first time in court. Even the evidence of PW 2 with regard to the fact that he had seen the deceased leave with the appellant from her parental home on the fateful day ought to have been taken with a pinch of salt. The said witness had not been interrogated by police and stated such fact for the first time in court. This leaves the court with the sole evidence of PW 1. I am not unmindful that domestic affairs and relationship between the couple within the four walls of the residence are circumstances which would be best known to the mother of the victim i.e. PW 1. However, her evidence that the appellant used to regularly take out the victim for visits to different places is a relevant circumstance which ought to be known to outsiders. However, the aforesaid circumstance does not find support or corroboration from any independent source except PW 2. As discussed earlier, evidence of PW 2 who make such assertion for the first time in court is highly unreliable. Under such circumstances, I find it unsafe to rely on the sole ipse dixit of PW 1 to come to a conclusion that the appellant used to regularly take the victim out for trips and on the fateful day had taken his wife out from her maternal home on the excuse of taking her to his grand-mother's house Hence, I am of the opinion the "last seen" theory based on the slender uncorroborated evidence of PW 1 does not appear to have been proved beyond doubt in the present case. Recovery of knife and wearing apparels from the latrine of the grandmother of the appellant:- 21. Pw 15, investigating officer deposed that the appellant made statement which lead to the recovery of knife and wearing apparels from the residence of Shakimun Bewa, grandmother of the appellant (Ext 4/b). However, the said statement of the appellant has not been exhibited. One of the witness to the seizure, PW 9 claimed that the knife was seized from the house and not from the latrine of the residence. No forensic report with regard to the presence of bloodstains either on the knife or on the wearing apparels have been placed on record. One of the witness to the seizure, PW 9 claimed that the knife was seized from the house and not from the latrine of the residence. No forensic report with regard to the presence of bloodstains either on the knife or on the wearing apparels have been placed on record. Hence, I am of the opinion that the aforesaid evidence do not establish beyond reasonable doubt that the knife and the wearing apparels of the deceased were recovered on his leading statement or that the said knife was the weapon of offence. None of the residents of the house including Bedana Bibi have been examined and it is nobody's case that the appellant had visited their house soon after the incident. It is also apposite to record that the place of recovery is not within the exclusive occupation and control of the appellant. Unexplained circumstance:- 22. Prosecution has not been able to tie all the loose ends in this case. PW 1 noted that the victim was five months pregnant. No DNA examination of the foetus of the deceased had been undertaken to show that the appellant was the father of the unborn child. Paternity of the unborn child was significant as the deceased and the appellant were not regularly living as husband and wife. If the prosecution case that the couple had good relations and the deceased had became pregnant due to cohabitation with the appellant is accepted, it is difficult to comprehend why the appellant would murder his wife while she was in the family way particularly in the absence of any evidence on record of hostility between the couple after a rapprochement had been arrived at between themselves. Conclusion:- 23. These loose ends and the failure of the prosecution to prove the circumstances relied upon it beyond doubt persuade me to come to a conclusion that the prosecution case against the appellant has not been proved beyond reasonable doubt and he is entitled to an order of acquittal. 24. Accordingly, I set aside the conviction and sentence of the appellant. 25. Appeal is allowed. 26. Appellant shall be forthwith released from custody upon executing a bond to the satisfaction of learned trial court for a period of six months in terms of section 437A Cr.P.C. if he is not wanted in any other cases. 27. 24. Accordingly, I set aside the conviction and sentence of the appellant. 25. Appeal is allowed. 26. Appellant shall be forthwith released from custody upon executing a bond to the satisfaction of learned trial court for a period of six months in terms of section 437A Cr.P.C. if he is not wanted in any other cases. 27. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 28. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. 29. I agree.