Calcutta High Court (Appellete Side)
Lachman Mondal vs State Of West Bengal on 22 January, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 847 of 2013
Lachman Mondal
-Vs-
State of West Bengal
For the Appellant : Mr. Kaushik Chowdhury
Amicus Curiae : Mr. Partha Pratim Das
For the State : Ms. Zareen N. Khan,
Ms. Trina Mitra
Heard on : 22.01.2019
Judgment on : 22.01.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 06.09.2013 and
07.09.2013passed by the learned Additional Sessions Judge, Fast Track Court - I, Raiganj, Uttar Dinajpur, in Sessions Case No. 70 of 2008/ Sessions Trial No. 64 of 2008 convicting the appellant for commission of offences punishable under Sections 498A/304B of the Indian Penal Code and sentencing him to suffer simple imprisonment for two years and to pay fine of Rs.1,000/- in default to suffer further simple imprisonment for two months more for the offence punishable under Section 498A of the Indian Penal Code and to suffer rigorous imprisonment for ten years for 2 the offence punishable under section 304B of the Indian Penal Code, both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect that the victim, Lakshmi Roy was married to the appellant two and half years ago. One year after marriage the appellant and other in-laws demanded money and buffalo from the victim. As the brother of the victim (P.W. 6) was unable to meet such demand she was subjected to torture. Due to such torture she committed suicide on the day of Saptami of Durga Puja. Over this issue P.W. 6, registered Raiganj Police Station Case No. 220 of 2002 dated 14.10.2002 under Sections 498A/304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the appellant and other in-laws, namely Gouri Sankar Mondal and Radani Devi being the father-in-law and mother-in-law of the victim.
In conclusion of investigation, charge-sheet was filed against the appellant and the co-accused persons and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Raiganj, Uttar Dinajpur for trial and disposal.
Charges were framed under Sections 498A/304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the appellant and other co- accused persons. They pleaded not guilty and claimed to be tried. It was the specific defence of the accused persons that the victim had committed suicide due to emotional outburst as she had not been taken to her parental home by her brother on the day of Saptami for Durga Puja celebrations.
To probabilise such defence, accused persons examined three witnesses. In conclusion of trial, the learned Trial Judge, by judgment and order dated 06.09.2013 and 07.09.2013 convicted and sentenced the appellant, as aforesaid. However, other accused persons were acquitted of the charges levelled against them.
3
Mr. Chowdhury, learned Counsel appearing for the appellant argued that the prosecution case is a divided house. P.W. 1 supported the defence version that the victim had committed suicide as her elder brother had not come and taken her to her parental home for Durga Puja celebrations. He also submitted that the evidence of other witnesses suffered from embellishments with regard to demand of dowry and torture upon the victim. He contended that the learned Trial Judge rejected the defence witnesses on flimsy and untenable grounds. Accordingly, he prayed for acquittal of the appellant.
Mr. Das, learned Counsel appearing as amicus curiae, has his supported contentions.
On the other hand, Ms. Khan, learned Counsel appearing for the State, submitted that the evidence of prosecution witnesses viz. P.Ws. 2, 3, 6, 8 and 9 disclose that the victim was tortured by the appellant over demands of money and buffalo. Unable to bear the torture, she committed suicide at her matrimonial home. No explanation was given by the appellant during examination under Section 313 of the Code of Criminal Procedure for the cause of death of the victim. Statutory presumption under section 113B of the Evidence Act has not been rebutted as the trial court rightly rejected the defence evidence. Hence, the appeal is liable to be dismissed.
It appears that the victim committed suicide by consuming poison at her matrimonial home. However, two rival versions are emerging from the submissions of the parties with regard to the cause of suicide. While P.W. 1 and the defence witnesses viz. D.Ws. 1 to 3 deposed that the victim committed suicide due to an emotional outburst as her brother had not taken her back to her parental home during Durga Puja, P.W. 6, i.e. brother of the victim and other prosecution witnesses deposed as money and buffalo demanded from the victim had not been 4 met she was tortured and being unable to bear such torture, she committed suicide.
Let me assess the rival versions in the light of the facts and circumstances of the case particularly in the backdrop of the statutory presumption under Section 113B of the Evidence Act.
P.W.6, Ram Segun Roy, the brother of the victim and the complainant in the instant case, deposed that his sister was married to the appellant for two and a half years and the relationship between the couple was good for one year. Thereafter the appellant and other in-laws demanded a buffalo and cash. They tortured his sister as he failed to meet such demand. His sister lastly visited his house on Rakhi- purnima day. He went to her matrimonial home to leave her there. Thereafter he received information that she had taken poison on Saptami during Durga Puja. He lodged written complaint which was drafted by a lawyer, P.W.5. He proved his signature on the written complaint.
P.W.2, 3 & 9 stated that they had heard from P.W.6 that the victim was subjected to torture over demands of buffalo and Rs. 10,000/-.
P.W.8, Ajay Kumar Yadav deposed that on the day of Rakhi-purnima, P.W.6 brought his sister to their house and at that time the victim stated that there was some disturbance in her in-law's house over the issue of non-fulfilment of demand of a buffalo and cash.
On the other hand, P.W.1, a neighbour of the appellant deposed that the victim wanted to go to her father's house on Saptami day of Durga Puja. His elder brother did not turn up and as a result she could not go to her father's house. Her mother-in-law assured that the victim would be sent to her parental home on the next day. However, she consumed poison in the night.
D.W.1, deposed that the victim had died by taking poison at the residence of the appellant. Brothers of the victim used to take her from her in-law's house on 5 the occasion of Durga Puja every year. But on the fateful day, none of the brothers came to take her to their house. She stated to a boy that if her brother did not take her to her paternal house, then her mother would see her dead face. He also deposed the couple had a good relation.
In cross-examination, he stated that he had come with the accused persons. The appellant boarded the vehicle from Mohiniganj while he boarded the vehicle from Lakshyania. He did not state the matter to the local panchayat or the family members of the deceased/victim.
D.W.2 is another neighbor of the victim. He deposed victim had told her daughter that her mother would see her dead face as none of her brothers had come to take her to her parental home on Saptami day.
D.W.3, is the daughter of D.W.2 who has corroborated the evidence of her father, D.W.2.
From the evidence on record, it appears that evidence relating to torture on the victim due to non fulfillment of demand for a buffalo and cash essentially comes from the mouth of P.W.6, the defacto complainant. Other witnesses, namely, P.W.2, 3 & 9 are reported witnesses who claimed that they heard about the incident from P.W.6. On the contrary, P.W.6 in his deposition did not state that he had narrated such facts to the said witnesses. P.W.8 deposed that the victim had come along with P.W.6 on Rakhi punima day to his house and she had intimated him of disturbances at her matrimonial home over demands of dowry. However, P.W.6 does not corroborate such version of P.W.8. P.W.2, 3, & 9 did not hear about torture on the victim from herself. Their versions, therefore, are hearsay and cannot be said to be admissible under section 32(1) of the Evidence Act as statement of the victim relating to the transactions leading to her death. Even P.W.6 did not state that he had narrated the incidents to the said witnesses. P.W. 6 also did not corroborate the version of P.W.8 that he heard of disturbances in the matrimonial 6 home of the victim when the latter came to P.W.8's house on Rakhi purnima day. In light of the aforesaid analysis of the evidence on record, I am constrained to hold apart from the version of P.W.6 there is no other reliable or legally admissible evidence on record with regard to demands of dowry and torture on the victim on such score. Even the deposition of P.W.6 in that regard is bereft of specific date when he last heard about torture on the victim so as to establish a live link between such torture and her suicide.
On the other hand, the version of the defence witnesses, namely, D.W.1 to 3 has been corroborated by P.W.1 with regard to the fact that the victim had committed suicide on Saptami day of Durga Puja as her elder brother had not come and taken her to her paternal home as was the regular practice in earlier years. It has been contended that no such explanation was offered by the appellant during his examination under Section 313 Cr.P.C. I would have otherwise accepted such contention advanced on behalf of the prosecution but for the evidence on record, particularly, that of P.W.1 which probabilises the defence explanation with regard to commission of suicide. When the prosecution case is a divided house and the prosecution witnesses speak in different tunes, such dichotomy in the prosecution case would ensure to the benefit of the appellant more particularly when the evidence of a prosecution witness (not declared hostile) probabilises the defence version. I have given due attention to the reasons given by the trial judge for rejecting the defence witnesses. D.W.1 was rejected as it is claimed that he came to court with the accused persons. Trial judge, however, lost sight of the explanation offered by D.W.1 in cross examination in that regard. Although the accused persons and the said witness had come in the same public transport but they had boarded it from different places. Hence, it cannot be said that the said witness had been escorted to court by the accused persons. Trial judge disbelieved the version of D.W.2 on the ground that he had not narrated the said incident to the police 7 earlier. There is nothing on record to show that the police had interrogated the said witness or that he had given a different version on an earlier occasion. Coming to D.W.3., I unable to concur with the opinion of the trial court that her evidence ought to be dismissed as she was aged 12/13 years at the time of occurrence. On the other hand, evidence of D.W.3 is corroborated not only by her father, D.W.2 but other witnesses, namely, P.W.1 & D.W.1 who categorically disclose the background and circumstances in which the victim had committed suicide in an impetuous manner.
It has been argued that the defence version ought not to be believed in the light of the statutory presumption under Section 113B of the Evidence Act which is attracted as the prosecution has shown that the victim was subjected to torture for or in connection with dowry soon before her unnatural death.
I have assessed the prosecution evidence from that perspective. I am unwilling to rely on the evidence of P.Ws 2, 3 and 9 with regard to torture on the victim over demand of dowry as such fact was not narrated to them by the victim herself. They claimed that they were apprised of such facts by P.W 6. P.W.6 has not corroborated them on such score. Even so, their version with regard to torture cannot be said to be admissible as the statement of the victim relating to circumstances leading to her death under section 32 (1) of the Evidence Act. Evidence of P.W 8 that the victim narrated to him about disturbances at her matrimonial home on Rakhi purnima day when she came to his residence with P.W.6 is not corroborated by the latter. P.W 6 is completely silent with regard to any complaint of torture made by the victim over demand of dowry or otherwise when she visited her parental home on Rakhi Purnina. That apart, version of the prosecution witnesses particularly P.Ws 2, 3, 8 and 9 suffer from embellishments and/or improvements when compared to their earlier statements made to the investigating officer P.W 11. Hence, I am of the opinion that the prosecution had not 8 been able to establish that soon before the death of the victim she was subjected to torture for or in connection with dowry. On the other hand, P.W 1 deposed that the victim had committed suicide in an impetuous manner as her brother had not taken her to her parental home during Durga puja on Saptami day. The said witness was not declared hostile. His deposition corroborates the version coming from the mouths of the defence witnesses.
The aforesaid factual backdrop, in my considered opinion, does not enable the prosecution to rely on the reverse burden enshrined in section 113B of the Evidence Act.
In the light of the aforesaid discussion, I am inclined to acquit the appellant of the charges leveled against him. The appeal is allowed. The appellant shall be discharged from bail bonds after 6 months in terms of Section 437A of the Code of Criminal Procedure.
Copy of this judgment along with the lower court records be sent down to the trial court at once.
I record my appreciation for the able assistance rendered by Mr. Partha Pritam Das as amicus curiae in disposing of the appeal.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) m tkm/sd/rkd/PA