Calcutta High Court (Appellete Side)
Ekadashi Nayak vs The State Of West Bengal on 8 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
&
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 722 of 2009
Ekadashi Nayak
VS
The State of West Bengal
For the Appellant : Mr. Sekhar Kumar Basu, Sr. Advocate
Mr. Somnath Banerjee
For the State : Mr. Pradipta Ganguly
Heard on : 8th November, 2017
Judgement on : 8th November, 2017
Joymalya Bagchi, J. :
The Appeal is directed against judgement and order dated 28/29.10.2009 passed by learned Additional District and Sessions Judge, Fast Track, 2nd Court, Haldia, Purba Medinipore, in Sessions Trial 2 No. 4(2)/08 coresponding to Sessions Case No. 20(Nov.)/2008 arising out of Mahishadal Police Station Cae No. 51 of 2006 dated 23.10.2006 convicting the appellant for commission of offences punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default to undergo imprisonment for a further period of two years.
The prosecution case, as alleged, against the appellant is to the effect that in the month of baisakh in the year 2006 the victim Urmila was married to the appellant according to Hindu rites and customs. At the time of marriage cash of Rs.33,000/-, ornaments and other household articles were given to the appellant as dowry. After the marriage the victim was subjected to mental and physical torture on further demands of dowry. On 23.10.2006, in the morning father of the victim Gokul Chandra Samanta, the de facto complainant, was informed that the appellant and the in-laws assaulted the victim and as a result she had died. He rushed to the matrimonial home and found the dead body of her daughter lying in the balcony of the house. The appellant confessed that in the night between 22/23.10.2006 he assaulted Urmila and when she became senseless, he hanged her with her sari at their balcony and as a result the victim died. On the basis of the written complaint of the father of the victim viz. Gokul Chandra Samanta a specific case being Mahishadal Police Station Case No. 51 of 2006 dated 23.10.2006 under Section 498A/304B/302/201/34 of the Indian Penal Code was 3 registered against the appellant and the in-laws i.e. father-in-law and mother-in-law of the victim. In conclusion of investigation charge-sheet was filed against the appellant and the two accused persons under Sections 498A/304B/302/34/201 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of learned Additional District and Sessions Judge, Fast Track, 2nd Court, Haldia, Purba Medinipore for trial and disposal and charges were framed under Section 498A/304B/302/34/201 of the Indian Penal Code against the appellant and other two accused persons. Prosecution examined seven witnesses in support of their case and exhibited number of documents. The defence of the appellant and two other accused persons was one of innocence and false implication. It was the specific defence of the appellant that there was an altercation over frying of an egg at the matrimonial home between him and the victim and thereafter the victim had committed suicide. In support of such plea, the appellant examined himself and another witness as defence witness. In conclusion of trial the trial judge by judgement and order dated 28.10.2009 and 29.10.2009 convicted the appellant for commission of offence under Section 302 of the Indian Penal Code and sentenced him as aforesaid. However, learned trial judge acquitted the appellant of the charge under Section 498A of the Indian Penal Code and other accused persons of all the charges levelled against them.
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Learned Senior Counsel appearing for the appellant submits that the evidence on record does not show that the victim was subjected to torture on account of dowry. He submits there was an altercation over domestic issues between the appellant and the victim and thereafter the victim committed suicide. The opinion of the autopsy surgeon, P.W. 7, is confusing and does not establish homicidal death beyond reasonable doubt. Without prejudice to the aforesaid submissions, he alternatively submits that even if the prosecution case of assault is believed in view of quarrel by and between the victim at the time of incident case of murder of the housewife punishable under Section 302 of the Indian Penal Code is not made out. He relied on various authorities in support of such contention.
Learned Counsel appearing for the State submits that the evidence on record clearly shows that the appellant not only assaulted the victim causing a fracture of her rib but thereafter strangulated her with a sari causing her death. Hence, there cannot be any escape from the conclusion that the appellant had intended to cause death of the victim and the conviction under Section 302 of the Indian Penal Code ought not to be interfered with. He further submits that the defence plea of suicidal hanging is not borne out from the materials on record, particularly in view of the injuries found by the autopsy doctor, P.W. 7. He accordingly prays for disposal of the appeal.
5P.W. 1 is the de facto complainant and father of the victim. He deposed that the victim was married to the appellant and was residing at her in-laws house. She died one and half years ago. He heard from the local people that the appellant murdered his daughter and after her death she was hung by the appellant. When he went to the matrimonial home of her daughter, he found that her dead body was lying in that house. Police came to the place of occurrence and took away dead body of the victim. Chandan Hazra prepared the written complaint which was signed by him marked as exhibit 1. He put his signature on the inquest report. In cross-examination he stated that his house and that of the appellant is intervened by a pond After marriage his daughter did not complain about anything when she visited his house occasionally.
P.W. 2 is a neighbour. He is also the panchayet member of the village. He stated that after the death of Urmila her father came to his residence and asked him to talk to the police officer. He went with the father of the victim to the house of the appellant and found the dead body of the victim was lying in the veranda. B.D.O, Mahishadal, was also present there and held inquest of the dead body of the victim. He signed on the inquest report.
P.W. 3 is the gram pradhan of the panchayet. He was declared hostile and was cross-examined by the prosecution.
P.W. 4 is the cousin of the victim. Hearing the news, he went to the matrimonial home of the victim and found that the victim was lying dead. 6 He prepared the written complaint marked as exhibit 1/1. He also signed written complaint marked as exhibit 1/ 2.
P.W. 5 is the brother-in-law of the victim. He has corroborated the evidence of P.W. 1. He has also signed on the inquest report marked as exhibit 2/1.
P.W. 6 is the investigating officer in the instant case. He was posted at Mahishadal Police Station at the time of occurrence on 23.08.2006. He received the written complaint from the P.W. 1 and registered the instant case. Investigation was endorsed to him. He drew up the formal F.I.R. marked as exhibit 1/3. He visited the place of occurrence, prepared the rough sketch map and index marked as exhibit 4 and 4/1 respectively. He also prepared the inquest report of the dead body of the victim marked as exhibit 5. He seized the wearing apparels of the victim under a seizure list marked as exhibit 2/2. He recorded the statement of the witnesses under Section 161 of the Code of Criminal Procedure, arrested the accused persons, collected post mortem report and filed charge-sheet. P.W. 7, the autopsy surgeon, deposed that he held autopsy over the dead body of the victim and found the following injuries : The length of the corpse was 59", body decomposed, swollen, blistering and skin slipping at places, face suffused, eyes closed, conjunctiva left congested, right haematoma, mouth partially open, tongue tip clenched in between upper and lower teeth and marks of teeth impression over both surfaces of tongue, blood froth bubbling at mouth and nostril, palms partially fisted 7 with bruishness of finger nails. Both breasts swollen, well developed with prominent areola and montgomer's tubercles and erected nipples. Maggots behind ear and over scalp hair. Morbling both upper arms, shoulders and neck region, P.M. hyposstasis, posterior aspect of the body except pressure point. On dissection of neck region muscles laceration and haematoma noted in pyramidal shaped. Abraided bruise noted in lower chin and sides of neck region. (1) Abrasion over right upper quadrant of left breast two in number. One is 2cm. X 1 cm., another is 1.5 cm. X 1 cm. - both having underneath haematoma in tissue. (2) One abrasion over left chest region of size 5 cm. x 4 cm. with underneath muscle laceration and haematoma with fracture of tenth rib. 3 cm. with non-continuous marks of ligature horizontally placed 2cm. above thyroid cartilage in front of sides of neck without any knot mark. No mark at nape of neck. Parchmentisation and hyoid and thyroid - intact, scalp decomposed with avulsion of hair, membrane - pale, decomposed, intact, skull and vertebrate - intact, brain -semisolid, decomposed, sulce, gyri bruised. Chest wall decomposed with abrasion as mentioned. Left tenth rib fracture, pleurae - pale decomposed, lyarnx and trachoea lumen contains wall haematoma and froth at vocal folds,. Right and left lungs decomposed, thoracic cavity contains blackish blood, pericaradium - pale decomposed intact, heart - pale decomposed, chambers - empty, vessels
-scanty blood, abdominal wall distended with greenish colourisation over pubic region, S/C fat two plus, peritoneum - pale decomposed blackish 8 blood in abdominal cavity, mouth, decomposed blackish blood in abdominal cavity, mouth, pharynx and oesophagus - mucus membrane decomposed blood present in hypophorynex, stomach and its contains - mucus membrane - pale, thin chocolate colour, outer anterior wall contains haemotoma of size about 8 cm. Diameter with irregular shape. No food materials no gastric erosion, no pungent smell, small intestine and its contents - dilated, place and blackish colour, gas and fluid, large intestine and its contents -dilated, pale, gas fluid and fedolin stool at perianae region, liver - decomposed and blood mopped, spleen - ruptured, Kidney - both decomposed and blood mopped, urinary bladder about 100 c.c. urine, organ of generation, external and internal - decomposed, uterus enlarged and contains an embryo of about 6 to 7 weeks of post conceptual age, injury - muscles as described above. Disease or deformity
- nil. He opined that the cause of death was due to combined effects of asphyxia resulting from strangulation and rupture of spleen and antemortem and homicidal in nature. The post mortem report is marked as exhibit 6. P.W. 7 was extensively cross-examined on various issues. The appellant examined himself as defence witness D.W. 1. He deposed that there was an altercation with his wife in the night over frying of an egg and thereafter she refused to sleep with him and stated that she would sleep in the veranda. When he woke up on the next morning due to shouting of neighbours he came out and saw his wife was hanging in the 9 varanda by her own sari. The para people unlocked the door and he came out.
D.W. 2 is an neighbour. He stated that his house is 10 cubits from the house of the appellant. He deposed that the relationship between the appellant and his wife was good. He deposed that at 5 a.m. while he was coming from his house he noted the victim was hanging in the veranda of the house. He shouted and village people assembled. He could not find the appellant. He went inside and found that the door was locked from outside. He opened the lock of the room.
From the evidence on record, it is evident that the victim suffered a brutal death in the night between 22/23 August, 2006 at her matrimonial home. Extensive injuries were found in her body including fracture of the tenth rib with laceration and haematoma. There were also injuries around her neck which was opined by the autopsy surgeon as marks of strangulation. P.W. 7, the autopsy surgeon, was extensively cross- examined on the aforesaid injuries. However, nothing could be elicited from him to give rise to any doubt that the aforesaid injuries were ante- mortem and homicidal in nature. In this backdrop, the appellant has taken a plea that there was a dispute between him and his wife over the frying of an egg and thereafter his wife had committed suicide by hanging in the veranda. In support of such plea the appellant examined himself and another witness. However, the hollowness of such defence plea is 10 self-evident in as much as such version does not account for the fracture on the rib caused on the appellant.
Learned senior Counsel appearing for the appellant, however, argues that it is possible that the injury in the rib was a post-mortem one. We are unable to accept such version as the injury shows laceration and haematoma clearly evidencing ante mortem brutal assault on the victim causing such injury. The defence version is, therefore, wholly improbable and is not sustained from the evidence on record. That apart, it is highly unlikely that a lady who had suffered a fracture of the rib with laceration and haematoma would be in a position to commit suicide by hanging. For the aforesaid reasons, we have no doubt in our minds that the victim housewife was brutally assaulted causing extensive injuries including fracture of her tenth rib and thereafter was strangulated to death. It is undisputed that the appellant was with the victim who suffered a brutal end. In the light of the aforesaid facts and the false plea advanced by him in the course of trial there is no escape from the conclusion that it is the appellant and he alone who is the author of the aforesaid injuries. Finally it was argued that the incident occurred due to a dispute over frying of eggs and hence the offence be scaled down under Section 304 of the Indian Penal Code. We are unable to accept such contention also. From the grave nature of the injuries suffered by the victim particularly the fracture on her rib with underlying laceration and haematoma and the ligature marks around her neck evidencing 11 strangulation it is evident that the appellant intended to cause death of the victim. The plea of quarrel between the couple over frying of eggs is based on the version of the appellant himself and is not corroborated by any other evidence.
Authorities relied by the defence are factually distinguishable. In the case of Kartick Hazra @ Srikanta @ Kartick Biswas vs. State of West Bengal & Ors. reported in (2008) 1 C Cr LR (Cal) 517, there was evidence of quarrel and the victim died due to single knife blow. Similarly in the case of Devendra Nath Srivastava vs. State of U.P. reported in JT 2017(3) SC 613 the Apex Court held that a single blow by a brick by the husband in the course of quarrel would amount to an offence under Section 304 of the Indian Penal Code.
In the case of K. Ravi Kumar vs. State of Karnataka reported in (2015) 2 SCC 638 the allegation of assault by knife had not been established by medical evidence and in view of the evidence that the victim was set on fire in course of quarrel the Apex Court held the husband guilty for commission of offence punishable under Section 304 of the Indian Penal Code.
In the instant case, we find the appellant not only assaulted is wife causing fracture of her rib with laceration and haematoma but thereafter to ensure that she had no chance to live strangulated her. The evidence of preceding quarrel is also flimsy and unreliable. In view of the cruel and inhuman assault on the housewife by the appellant causing extensive 12 injuries and thereafter strangulating her to ensure her death, the aforecited cases are inapplicable to the facts of the case and no case for scaling down the offence to culpable homicide is made out.
In view of the aforesaid discussion, we uphold the conviction and sentence imposed on the appellant.
Appeal is accordingly dismissed.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.) sdas