Calcutta High Court (Appellete Side)
Brojogopal Mondal & Anr vs The State Of West Bengal on 15 June, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Item 535/Aloke
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 485 of 2014
BROJOGOPAL MONDAL & ANR.
VS
THE STATE OF WEST BENGAL
For the appellants : Mr. Milon Mukherjee, Sr. Advocate
Mr. R.P. Motilal, Advocate
Mr. Pabitra Biswas, Advocate
Mr. Probal Sarkar, Advocate
For the State : Ms. Anusua Sinha, Advocate
Heard on : June 15, 2017
Judgement on : June 15, 2017
Joymalya Bagchi, J. :
The Appeal is directed against judgement and order dated 30.06.2014 passed in Sessions Trial No. 5(02) of 2010 arising out of Sessions Case No. 22 of 2009 convicting the appellants for commission of offence punishable under Sections 498A and 306 of the Indian Penal Code and sentencing them to suffer 2 rigorous imprisonment for two years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 498A of the Indian Penal Code and sentencing appellant no. 1, Brojogopal Mondal, to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months and appellant no. 2, Munmun Mondal to suffer rigorous imprisonment for three years and to pay a find of Rs.3,000/-, in default to suffer simple imprisonment for six months for the offence punishable under Section 306 of the Indian Penal Code, both the sentences run concurrently.
The prosecution case, as alleged, against the appellants is to the effect that the victim, Mita Mondal was married to appellant no. 1 on 01.05.2006. At the time of marriage a cash of Rs.50,000/-, 3 bharis of gold ornament, cot, other furniture and utensils were given as dowry. Soon after marriage she was subjected to mental and physical torture for demands of further dowry. On 09.05.2006 at about 9 p.m. Mita told her father/ de facto complainant that she was unable to bear torture inflicted upon her by the accused persons and asked her father to take her back from the matrimonial home. It is further alleged that when de facto complainant went to the matrimonial home on the next day i.e. 10.05.2006 at 6 a.m. he found her daughter lying on the floor tossing in acute pain. She disclosed that appellants had administered poison to her. The victim was taken to Lalbagh Hospital where she expired at 9/9-30 a.m. On the written complaint of P.W. 1, Susanta Mondal first information report being Murshidabad 3 P.S. case no. 69/2006 dated 10.05.2006 under Sections 498A/302/34 of the Indian Penal Code was registered for investigation.
In conclusion of investigation, charge-sheet was filed under Sections 498A/302/34 of the Indian Penal Code against the appellants and other accused persons and the case was committed to the Court of Sessions and transferred to the Court of learned Additional Sessions Judge, Lalbagh, Murshidabad for trial and disposal.
Charges were framed under Sections 498A/34/304B/34 of the Indian Penal Code against the appellants and other co-accused persons. They pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents.
The defence of the accused persons was one of innocence and false implication. It was their specific defence that the victim had been forcibly given in marriage to appellant no. 1 against her will and accordingly she committed suicide.
In conclusion of trial, the trial Judge by judgment and order dated 30.06.2014 convicted and sentenced the appellants, as aforesaid. By the self- same judgment, the trial court, however, acquitted the other in-laws, namely, 4 Bangshigopal @ Bangshidhari Mondal, Basudeb Mondal and Jalad Barani Mondal from the charges levelled against them.
Mr. Mukherjee, learned senior counsel appearing for the appellants submitted that the first information report is an ante-dated document as it was dispatched to the Magistrate seven days after the incident. It is further submitted that there was no grievance at the first instance and an unnatural death case was registered as the victim had committed suicide as she had been given in marriage to appellant no.1 against her will. He relied on the evidence of P.Ws. 6 and 7 to probabilize such fact. He strenuously argued that the allegations of torture over the demands of dowry were unreliable and ought to be disbelieved. He submitted that appellant no. 2 and other acquitted persons stood on the same footing. There was no reason to convict appellant no. 2 while exonerating the other in-laws in the instant case.
On the other hand, Ms. Sinha, learned counsel appearing for the State submitted that the housewife had died within ten days from marriage. P.W. 6 & 7 had been declared hostile and the defence that the housewife was married to the appellant no. 1 against her will and consequentially committed suicide is most flimsy and was rightly rejected by the trial court. She accordingly prayed for dismissal of the appeal.
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P.W. 1 is the de facto complainant in the instant case. He is the father of the victim. He stated that victim was married to appellant no.1 on 01.05.2006. At the time of marriage he had given Rs.50,000/-. In addition thereto, three bharis of gold ornaments, utensils and furniture were also given. On 'astamangala' the victim returned to her house from the matrimonial home. She informed that the accused persons were not satisfied with the dowry items. They were demanding more dowry. Thereafter the victim returned to the matrimonial home. Some days later he received a telephonic call from his daughter from a telephone booth and his daughter informed him that the accused persons were torturing her and requested him to take her back from the matrimonial home. On the following morning when he went to the matrimonial home he found that his daughter was tossing in pain after consuming poison and she informed him that the appellants had administered her poison. She was taken to the hospital where she expired at about 9 a.m. He lodged written complaint with Murshidabad P.S. (Exbt. 1). He signed on the inquest report (Exbt. 3/1). He also signed on the seizure list regarding seizure of the wearing apparels of the victim (Exbt. 4/1).
P.W. 2 is the mother of the victim. She has corroborated the evidence of her husband P.W. 1.
P.W. 3 is the uncle of P.W. 1. He deposed that on 'astamangala' day the victim came to her paternal home and he found that the victim did not have a natural relation with appellant no. 1. The victim informed that further demands 6 of dowry had been made by her in-laws. On 09.05.2006 the victim telephoned her father and informed him about torture meted out to her on further demands of dowry. On the next day they went to the matrimonial home whereupon he found that the victim was tossing in pain upon ingesting poison and she informed that appellants had administered poison to her. The witness also proved his signature on the inquest report.
P.Ws. 4 and 5 are the barber and Priest respectively of the marriage. They proved the marriage between the victim and appellant no. 1.
P.W. 6 is a neighbour of the accused persons. He deposed that the victim consumed poison and succumbed due to poisoning at the hospital. He signed on the inquest report as well as the seizure list with regard to the seizure of wearing apparels of the victim. He further deposed that he could not state why Mita Mondal had consumed poison. In cross-examination he deposed that his wife had heard from local girls at the time of taking bath in the common bathing area that Mita was unwilling to marry appellant no. 1 and was unhappy in her marriage. He deposed that he had not given any statement to the police. He had been declared hostile.
P.W. 7 is another neighbour of the accused persons. He deposed that he saw the victim being taken away in a rickshaw van and when he went to the spot she was stating that she had consumed poison. He came to know that her 7 parents arranged her marriage with appellant no. 1 against her own will. She had consumed poison. Subsequently, he heard that Mita had expired in the hospital. He proved his signature in the seizure list. He was declared hostile and cross- examined by the prosecution witnesses.
P.W. 8 is also a neighbour of the accused persons. He deposed that the victim had died at her matrimonial home.
P.W. 9 was posted as Deputy Magistrate and Collector, Lalbagh, Murshidabad and on 10.05.2006 he held inquest over the dead body of the victim in connection with Murshidabad U.D. Case No. 33/06 dated 10.05.2006. He proved the inquest report (Exbt. 3).
P.W. 10 is the nephew of P.W. 1. He deposed Mita was married to appellant no. 1. He stated that there was discord over issue of dowry. The accused persons demanded more dowry. Mita was subjected to mental and physical torture by the accused persons. She was administered poison by the appellants. He came to know about the incident from P.W. 1. He had written the complaint on the instruction of P.W. 1. He proved the written complaint (Exbt. 1/1).
P.W. 11 was posted as Medical Officer at Lalbagh S.D. hospital at the time of occurrence. He held post mortem examination over the body of the victim. He found 30 ml. foul smelling liquid in the stomach of the victim. He opined that the death was due to unknown poisoning. He also opined that the death was suicidal 8 in nature. He opined that final opinion may be given after obtaining viscera report. He collected viscera from corpse. There is no reflection in the post mortem report as to preservation of viscera and handing over to FSL for chemical examination. He proved the post mortem report (Exbt. 6) P.W. 12 is the uncle of the victim. He was present at the time of holding inquest. He proved his signature on the inquest report.
P.W. 13 is a signatory to the seizure list relating to the seizure of the wearing apparels of the victim (Exbt. 4/3).
P.W. 14 and 15 are the Investigating Officers in the instant case. P.W. 15 drew up formal FIR and commenced investigation. He visited the place of occurrence and prepared sketch map with index (Exbt. 8). He recorded statements of the witnesses. He seized one box bearing level Endosil under a seizure list. He went to Lalbagh Hospital where dead body of the deceased was lying. He prepared the inquest report (Exbt. 2). He seized wearing apparels of the victim (Exbt. 4). He arrested the accused persons. He forwarded the dead body for post mortem examination and collected post mortem report. He forwarded the viscera of the dead body for FSL examination and report. He handed over charge of investigation to IC, Murshidabad upon transfer.
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P.W. 14 is the second investigating officer who recorded the statements of the witnesses, examined accused persons and submitted charge-sheet.
From the evidence on record it appears that the victim was married to appellant no. 1 on 01.05.2006. Within ten days of her marriage she died due to poisoning at her matrimonial home. Although, P.Ws. 1 and 3 have stated that the victim complained to them that the appellants had administered poison, such fact is not corroborated by independent witnesses like P.W. 7 and even the doctor has opined that the death is suicidal in nature. Accordingly, the trial court convicted the appellants for commission punishable under Section 306 of the Indian Penal Code in addition to the offence under Section 498A of the Indian Penal Code. It is, therefore, relevant to examine as to whether the acts of the appellants constitute the aforesaid offences in the factual matrix of the case or not.
While the prosecution has relied on the evidence of the relations of the victim, namely, P.Ws. 1, 2, 3 and 10 to establish that she was subjected to mental and physical torture by the accused persons on further demands of dowry, defence has strenuously relied on the evidence of P.Ws. 6 and 7, the neighbours of the appellants, who claimed that the victim was unwilling to marry the appellant no. 1 and on being forced to do so, had committed suicide. P.Ws. 7 and 8 were declared hostile by the prosecution. Appreciation of their evidence would show that they did not have direct knowledge about the unhappiness of 10 the victim on account of her marriage to appellant no. 1. P.W. 6 claimed that he heard of the aforesaid circumstance from his wife who in turn had heard it from local girls. Neither the wife of P.W. 6 nor any other persons who had direct knowledge of such circumstance has been examined in the instant case. Similarly, P.W. 7 also claimed to be a reported witness with regard to alleged unhappiness of the victim due to her marriage with appellant no. 1.
Hence, I hold that the aforesaid pieces of evidences with regard to alleged unhappiness of the victim over her marriage as contended by the defence is based on inadmissible and hearsay pieces of evidence and is liable to be rejected.
On the other hand, the evidence of P.W. 1 and other witnesses are consistent with regard to the ill-treatment of the victim on the score of further demands of dowry. Evidence has come on record that cash of Rs.50,000/-, gold ornaments and other articles were given as dowry at the time of marriage and on 'astamangala' day the victim reported to her parents and other relations that she was being ill-treated at her matrimonial home over further demands of dowry. P.W. 3 noticed that appellant no. 1 was behaving unnaturally with the victim. Even a day before the incident, the victim telephonically complained of torture to P.W. 1 and requested him to take her away from the matrimonial home. 11
From the aforesaid evidence on record, it can, therefore, be safely conclude that the victim was subjected to torture for further demands of dowry at her matrimonial home and hence was committed suicide.
First information report was promptly lodged on the day of the incident and I am unable to accept the contention of the learned senior counsel that it was ante-dated merely on the score of delay in despatch of the FIR to the Magistrate which may have occurred due to myriad other reasons of systemic delays.
Coming to the extent of complicity of the appellants with regard to torture meted out to the victim on further demands of dowry, I find that the evidence is general and omnibus so far as the appellant no. 2 is concerned and she stands on the same footing as the other in-laws who have been acquitted in the instant case. No appeal has been preferred against the order of acquittal of the other in- laws and it has become final and binding between the parties. I have examined the evidence as a whole and I do not find any distinction in the role and the status of the appellant no. 2 and the other acquitted persons. No overt act is attributed to her. As the evidence with regard to torture on the victim by appellant no. 2 is found to be general and omnibus and she stands on the same footing as the other in-laws who have been acquitted, I am of the opinion that on the parity of reasoning appellant no. 2, the sister-in-law of the victim is also entitled to self-same relief. In this regard reference may be made to Ram Laxman vs. State of Rajasthan (2016) 2 SCC 389.
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The evidence on record, however, shows that the role and involvement of appellant no. 1-husband of the victim is on a different footing. P.W. 3 categorically stated that even at the parental home he did not behave well with his wife when they had come to the parental home on 'astamangala' day. There is clear and cogent evidence on record that he had subjected his wife to torture on further demands of dowry. Accordingly, the case of the appellant no. 1-husband of the victim stands on a different footing from that of appellant no. 2 and the other acquitted accused persons and he has been rightly convicted in the instant case.
Hence, I am inclined to uphold the conviction of appellant no. 1 while extending the privilege of acquittal to appellant no. 2 on the principle of parity with other acquitted in-laws of the victim. The conviction and sentence of the appellant no.1 is accordingly upheld.
The conviction and sentence of appellant no. 2 is set aside. The appellant no. 2 shall, however, continue on bail for six months from this date in terms of Section 437A of the Code of Criminal Procedure.
The period of detention undergone by appellant no. 1 during investigation, enquiry, trial shall be set off against substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
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The appeal is partly allowed.
Copy of the judgement along with LCR be sent down to the trial Court at once for necessary compliance.
(Joymalya Bagchi, J.) Item No. 535 Aloke 14 15