Calcutta High Court (Appellete Side)
Biswajit Mondal vs The State Of West Bengal on 9 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 300
Aloke/ss
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 744 of 2016
BISWAJIT MONDAL
Versus
The STATE OF WEST BENGAL
For the Appellant : Mr. Deep Chaim Kabir, Ld. Advocate
Mr. Atis Kumar Biswas, Advocate
Mr. Mashar Hossain Chowdhury, Advocate
Ms. Jonaki Saha, Advocate
For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.
Mr. Rudradipta Nandy, Advocate
Ms. Sreyashee Biswas, Advocate
Heard on : 09.01.2018
Judgement on : 09.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 25.02.2010 passed by the learned Sessions Judge, Nadia convicting, in Sessions Trial No. II of November, 2008 arising out of Sessions Case No. 105(9)2008 convicting the appellant for commission of offence punishable under Sections 302/34 and 498A of the Indian Penal Code and sentencing him to undergone rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprironment foe one year more and for the offence under Section 302/34 of the Indian Penal Code and to suffer rigorous imprisonment for two years and to pay a find of Rs.2,000/-, in default, to suffer rigorous imprisonment for six months more for the offence under Section 498A of the Indian Penal Code, both the sentences to run concurrently.
The prosecution case, as alleged, against the appellant and other absconding accused persons, namely Fuljhara Mondal, Nirmal Mondal and Dipali Mondal being the mother-in-law, brother-in-law and wife of brother-in-law respectively of the victim-house wife is to the effect that the victim was married to the appellant in the year 2005 according to Hindu rites and customs. Unfortunately, the victim was a handicapped lady who was partially deaf and dumb. The appellant and the other accused persons subjected her to mental and physical torture as they did not like her due to such disabilities. She was kept under lock and key when the appellant and the mother-in-law went out. The victim narrated the incidents of torture to her parents. On 15.01.2008 around 08/10/11 p.m. the appellant and other accused persons tied her hand and set her on fire at the matrimonial home. She was shifted to hospital. First information report was registered by Dasarath Ray, father of the victim (P.W. 1) against the appellant and the other accused persons being Kotwali P.S. Case No. 24/2008 dated 16.01.2008 under Sections 498A/326/307 IPC. The victim finally expired in the hospital on 26.01.2008 and in conclusion of investigation, charge- sheet was filed against the appellant and other accused persons under Sections 302/34 and 498A of the Indian Penal Code. The case being the sessions triable one was committed to the Court of Sessions. As the other accused persons had absconded the case was filed against them and charges were framed under Sections 302/34 and 498A of the Indian Penal Code against the appellant.
The appellant pleaded not guilty and claimed to be tried. Prosecution examined 18 witnesses and exhibited a number of documents to prove its case. The defence of the appellant is one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 25th February, 2010 convicted and sentenced the appellant, as aforesaid.
Mr. Kabir with Mr. Biswas, learned counsels appearing for the appellant argued that the evidence of the prosecution witnesses with regard to the dying declaration of the victim is not convincing. It appears from the first information that the victim was senseless when was admitted in hospital. Hence, there was no question of her making a dying declaration to the witnesses. It is also argued that there is no evidence that the appellant was present at his residence at the time of the incident. Subsequently, he took the victim to the hospital for her treatment. It is submitted that no rope was seized to probabilize the allegation that the hands of the victim were tied at the time of occurrence. Accordingly, it was submitted that the appellant be acquitted of the charges levelled against him.
Learned Public Prosecutor with Mr. Nandy argued that the victim was a handicapped lady having speech disability. Due to such handicap she was tortured by the appellant and the other accused persons. The incident occurred at the matrimonial home and P.W. 2 who came to the place of occurrence found that the hands of the victim were tied while she was ablaze. Moreover, P.W. 14, the doctor who treated the victim deposed that the latter had indicated with gesturees that her hands were tied when she was set on fire. These circumstances clearly show that the victim suffered homicidal death. The appellant resided with the victim and has not given any plausible explanation with regard to such homicidal death. That apart, the evidence of prosecution witnesses with regard to the dying declaration of the victim also lends credence to the prosecution case. Hence, the appeal is liable to be dismissed.
P.W. 1 is the father of the victim. He deposed that the victim was given in marriage to the appellant according to Hindu rites and customs in 2005. A female child was born to the couple. When his daughter came to his house, she used to complain that she was being tortured by the appellant and other in-laws. She was kept confined in a room and she was physically assaulted by the appellant and her in-laws. On 15.01.2008 his daughter was burned to death at the matrimonial home. On 15.01.2008 the victim Beauty was severely assaulted by her husband at night. One Himangshu Biswas informed him that his daughter had sustained burn injury and had been taken to Nadia District Hospital at Shaktinagar. He found his daughter lying in the bed alone. He enquired how she suffered the burn injuries. At that time his daughter narrated that while she was alone there were four members on the other side. They tied her hands and feet with wearing apparels. They pushed her down and assaulted her. Thereafter they poured kerosene oil on her body and set her on fire with a match stick. On the next day he lodged first information report. He put his signature on it marked as exbt. 1/1. Inquest was held. He puts his signature on the inquest report marked as exbt. 2/1. Other accused persons had fled away. His daughter was hard of hearing and used to stammer.
In cross-examination, he admitted that in so many words he did not narrate in the FIR that on being asked his daughter told him that she was alone while on the other side they were four in number. They tied her hands and feet with her wearing apparels. They assaulted her and poured kerosene oil on her and set her on fire.
P.W. 2, a neighbour of the appellant, deposed that he knew P.W. 1. He stated that initially Beauty was treated well at her matrimonial home for six months after her marriage. Thereafter, she was tortured as she was not upto the liking of her husband and other in laws. She was subjected to physical and mental torture. Salish was held on a number of occasions over such issue. On the fateful night when Beauty caught fire, he went to her matrimonial home on hearing hue and cry. Beauty was sent to the hospital. Police seized burnt wearing apparels and other household articles under a seizure list. At the time of occurrence the victim resided with the appellant and her mother in law. The house of Beauty consisted on one bedroom and one godown.
In cross-examination, he stated although Beauty was deaf and dumb, she could express by gesture and posture. There were regular quarrels in the matrimonial home of Beauty. He, however, could not say the reason for such quarrel. There is no recording of the village Salish. He denied the suggestion that on the date of the incident, Beauty's child fell from the cot and as her mother in law scolded her, Beauty committed suicide.
P.W. No. 3 is another neighbour of the appellant. He deposed that Beauty was subjected to torture at her matrimonial home. There was a village Salish on more that one occasion. He stated that Biswajit and her mother set Beauty on fire. Para people assaulted the mother of the appellant and she was admitted to hospital.
P.W. 4 is another neighbour who, however, was declared hostile. In cross-examination she stated that she could not say the reason why there was quarrel at the matrimonial home of Beauty.
P.W. 5 is also neighbour of the appellant. He stated that Beauty was killed by setting her on fire. There was a salish over disturbance in the matrimonial home. Beauty used to stammer and she was not upto the liking of the appellant. He also stated that Beauty told him that the appellant and others set her on fire.
P.W. 6 is a neighbour of the appellant. He deposed that on 15.01.2008 around 10 p.m. he heard hue and cry from the house of the appellant and rushed to the spot and found Beauty ablaze. On being asked Beauty told him in the hospital that the appellant and others had caught hold of her inside the room and after wrapping up a Sari they set on her fire. He scribed the first information report as per the instruction of the P.W. No. 1.
P.W. 7 was a signatory to the inquest report prepared in the hospital. He was also signatory to the seizure list in respect of seizure of wearing apparels of Beauty.
P.W. 8 is an aunt of Beauty. She stated that she had gone to the hospital occasionally to meet Beauty. She stated that Beauty deposed in the hospital that she was set on fir by the appellant and others. Beauty was in a position to interact with the people who went to the hospital to see her.
P.W. 9 is a neighbour of the appellant. He deposed that Beauty caught fire in the matrimonial home. She came out of the room and fell down on the courtyard and was burning. All the neighbours assembled and tried to extinguish the fire. Beauty was taken to the hospital in a rickshaw van. She was unconscious. 3/4 days after he went to the hospital. At that time Beauty raised her forefingers indicating that four persons were involved in setting her on fire. In a low voice she stated that Biswajit and other in laws set her on fire.
P.W. 13 is the uncle of he appellant. He deposed that on the previous day of the incident he had received a mobile call from the appellant. Prior to the incident Biswajit and other in laws had gone to Bhagabanpur in the District of Murshidabad for a tour. At that time Beauty was alone in the house. Over the mobile phone appellant wanted to know whether Beauty was at the matrimonial home or not. At that time Beauty had come to their house as she did not want to stay alone in the matrimonial home. Beauty's father took her to his house. When the appellant and other in laws returned to the matrimonial home Beauty's father took her back to the matrimonial home. On that night Beauty's mother in law assaulted her and on the very night Beauty caught fire. He went to the hospital.
P.W. 14 is the Medical Officer attached to the District Hospital Naida at Krishnagar as Surgeon. On 15.01.2008 he was holding the same post. He examined the victim who was admitted under him with 80 per cent burn injuries. At the time of admission the victim was unable to give details as to how she sustained burn injuries. She was given treatment and on 20.01.2008 the patient made some gestures wherefrom it appeared that her hands were tied before she was set on fire. She expired on 26.01.2008. He proved the bed-head ticket (Exhibit 6).
In cross-examination he stated that on 15.01.2008 he first attended the patient. At that time she could not say anything about the cause of the said burn injuries.
P.W. 15 is the District Welfare Officer. He prepared the inquest report over the dead body of Beauty.
P.W. 16 is the autopsy Surgeon who opined that the death was due to shock resulting from secondary infection of burnt areas on body which was ante mortem in nature. He proved the report (Exhibit 7).
P.W. 18 is the investigating officer in the instant case. From the aforesaid evidence it appears that Beauty, a deaf and dumb lady, was married to the appellant. Soon after the marriage she was subjected to physical torture at her matrimonial home by the appellant and others as she was not upto their liking due to her disabilities. Independent witnesses like P.W. 2, 3, 5, 6, 7 and 9 have unequivocally stated that there was disturbance at the matrimonial home of Beauty and that she was subjected to physical torture at her matrimonial home. These witnesses have categorically stated that Beauty suffered burn injuries in the night of 15.01.2008 at the matrimonial home. P.W. 2 further stated that when he rushed to the place of occurrence he found that the hands of Beauty were tied while she was ablaze.
These evidence on record, therefore, show that Beauty was subjected to physical torture by the appellant and other in laws at her matrimonial home and on 15.01.2008 she suffered burn injuries and it had been noted by P.W. 2 that her hands were tied at the time of occurrence. Soon thereafter she was rushed to the hospital where she expired on 26.01.2008. Although some of the prosecution witnesses claimed that Beauty disclosed to them on the date of admission that the appellants had set on her fire, I am unable to accept their evidence.
P.W. 14, the treating doctor, stated that she was in a position to disclose on the date of admission as to how she was caught fire. Furthermore, P.W. 8 also stated that the victim was senseless at the time of admission. Hence, it is difficult to accept the version of some of the prosecution witnesses that the victim had made a dying declaration to them on the date of admission.
However, it has also transpired from the evidence of P.W. 14 that upon treatment her condition improved on 20.01.2008 she was conscious and indicated through gestures that her hands were tied at the time of occurrence.
The aforesaid fact as narrated by P.W. 14 corroborates the evidence of P.W. 2 that the hands of Beauty were tied while she was ablaze. In view of the fact that the hands of the victim were tied at the time of incident it is impossible that the victim committed suicide due to disturbance between herself and her mother in law over the care of child as proposed by the defence.
On the other hand, the aforesaid facts unerringly point to the irresistible conclusion that the victim suffered a homicidal death at her matrimonial home of the victim. The incident occurred in the night at the matrimonial home where the victim resided with the husband and her mother in law. Although, it has been desperately argued for the first time before this court that the appellant was not present at the time of the incident, no such plea was raised nor any evidence led to probabilise such plea of alibi on behalf of the appellant during trial.
It is all but natural that the husband and wife would remain in the same room in the night when the incident of homicidal death occurred at the matrimonial home. The appellant has singularly failed to explain the circumstances in which his wife suffered such homicidal death.
Hence, I am of the view that the prosecution has been able to prove that the appellant had set the victim on fire at the matrimonial home along with others resulting in her death. Prosecution case is accordingly proved beyond reasonable doubt.
Conviction and sentence of the appellant is upheld.
Period of detention suffered by the appellant during investigation, enquiry and/or trial shall be set off against substantive sentence under section 428 of the Code of Criminal Procedure.
The appeal is, accordingly, dismissed.
Copy of judgement along with lower court records be sent down to the trial court at once.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)