Calcutta High Court (Appellete Side)
Renubala Dey And Three Others vs State Of W.B on 11 April, 2008
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
C.R.A. No.651 of 2005
Present :
The Hon'ble Mr. Justice Girish Chandra Gupta
And
The Hon'ble Mr. Justice Kishore Kumar Prasad
Renubala Dey and three others.
Versus
State of W.B.
Advocate for the appellant : Mr. Sekhar Kumar Basu
Mr. Bidyut Kr. Roy
Mr. Debasis Roy
Mr. Phiroze Edulji
Mr. Ranadeb Sengupta
Mr. Mangaljit Mukherjee
Advocate for the respondent/State : Mr. Asimes Goswami, Ld. P.P.
Miss Minoti gomes
Ms. S. Sultana
Advocate for the respondent no.2/: Mr. Ritwik Pattanayak
De facto complainant
Hearing concluded on : 19.3.2008
Judgment on : 11.4.2008
GIRISH CHANDRA GUPTA, J :
This appeal is directed against a judgment and order dated 18th August 2005 and 19th August 2005 passed by Sri Biswanath Dey, learned Additional District & Sessions Judge, Fast Track Court, Jhargram, Paschim Midnapore, in Sessions Trial No.XXX/April/2005 convicting the appellants under sections 498A and 304B of the Indian Penal Code read with section 34 thereof. The appellants were sentenced to suffer three years rigorous imprisonment as also to pay a fine of Rs.15000/- each for committing offence punishable under section 498A IPC, in default of payment of fine they were directed to undergo simple imprisonment for a period of one year each. They were further sentenced to suffer life imprisonment for the offence punishable under section 304B of the Indian Penal Code as also to pay a fine of Rs.10000/- each. The amount of fine, if realised, was directed to be paid to the father of the deceased as and by way of compensation as also for the future needs of the child left by the deceased.
Briefly stated the prosecution case is as follows:-
The deceased Jhuma was given in marriage to Nirmal Kanti Dey, son of Sri Lambodor Dey, according to Hindu rites and customs about 3½ years prior to the date of the incident. The actual date of marriage is not on the record. On 9th May 2003 she is alleged to have committed suicide. The written complaint which has been marked Ext.1 goes to suggest that the victim was killed and thereafter hanged in order to make out a case of suicide. She left a female child less than one year old. The following allegations were made in the written complaint as regards physical and mental torture coupled with demand for dowry:-
"For long since the marriage her mother-in-law, sister-in-law and others were torturing her both mentally and physically which she informed at her parental house. At the time of marriage we gave Rs.20000/- cash entirely and ornaments. But afterwards he demanded Rs.10000/- for almirah from us through our daughter. Though I said that I would give the money but I suspect that all the family members killed my daughter owing to that money."
The husband of the deceased, her parents-in-law, two sisters-in-law and brother-in-law were charged under sections 498A and 304 B read with section 34 and section 120B of the IPC. The accused Jagat Taran Paira and the accused Anima Senapati were acquitted. The convicts have come up in appeal.
We already have noticed the allegation as regards the torture coupled with demand of dowry appearing from the written complaint lodged by the father of the deceased which has been marked ext.1. From the inquest report, the villagers, present at the time of inquest, appear to have told the Sub-Inspector of Police who conducted the inquest " the husband, father-in-law, mother-in-law and sisters-in-law of the deceased used to torture her frequently both physically and mentally". Father of the deceased, the P.W.1, in his evidence deposed about torture and a demand for an almirah or a sum of Rs.10000/- in lieu thereof. He has deposed that at the time of marriage he had given a sum of Rs.20000/- in cash and other ornaments. He had agreed to give an almirah or a sum of Rs.10000/- within two years but he could not do so. He deposed in cross-examination that thrice his deceased daughter had come to the parental home. Once she had come after altercation. He thereafter took her to her matrimonial home. He was however unable to disclose the date or time even by approximation when the dispute had actually arisen. He has indicated another reason of discontent between the couple which was that the deceased was an educated woman whereas her husband the accused Nirmal was illiterate or semi-literate and he used to disrespect her. In cross-examination he lastly deposed that the money was demanded on 8th May 2003. He however rectified himself by stating that the demand for the last time was made on 1st may 2003. The death took place on 9th May 2003. He at the same time has made the following significant admission:-
"Jhuma paid respect to the in-laws. She had good behaviour towards them. They also loved Jhuma. I and my wife did not make quarrel with the counter-side. We have normal relation with them."
Another significant fact was elicited from the P.W.1 by the defence, during cross- examination, that the P.W.1 and his brothers after knowing about the death went to the house of the accused persons and assaulted them severely. P.W.2 Abani Das, maternal uncle of the deceased, deposed that the husband and the parents-in-law of the deceased tortured her. He also talked about a demand for Rs.10000/- for purchasing an almirah which had not been met. In his cross-examination he admitted that he had not been interrogated by the investigating officer. He also admitted that all the sisters-in-law of the deceased used to live in their matrimonial house. He also admitted that he never had gone to the matrimonial house of the deceased after her marriage. P.W.7, an aunt of the deceased, deposed about tortures inflicted upon the victim by her husband, parents-in-law and sisters-in-law. She also was not examined by the investigating officer. She admitted in her cross-examination that for the first time she was disclosing this fact in Court. P.W.9 another uncle of the deceased deposed about torture coupled with demand of Rs.10000/-. P.W.10, a brother-in-law of the deceased and a practising lawyer at the relevant time, who had also scribed the written complaint, deposed that the husband and the parents-in-law of the deceased used to assault her. They also did not give her food regularly. Relevant part of his deposition may be reproduced hereinbelow:-
"Once Jhuma came to her father's house and told about demand of Almirah Jhuma told failing of payment of money would cause inflicting of torture upon her. Jhuma is no more in the world. She has been murdered on 9.3.05."
P.W.11, another aunt of the deceased, deposed about torture by the husband and her in-laws. She however admitted that she had not been examined by the police.
Mr. Basu, learned Advocate appearing in support of the appeal submitted that the evidence of P.Ws.2,7 and 11 cannot even be looked into because they were never examined under section 161 Cr.P.C. by the police. As regards the evidence of P.W.9 he submitted that the witness did not depose that he had come to know about the alleged torture from the victim during her lifetime. As regards the evidence P.W.10 he submitted that the witness at the time when the incident took place was a practicing lawyer. Subsequently he may have left the profession and joined service as a teacher but sight cannot be lost of the fact that he had a mind trained in law. He is likely to have supported the case of the prosecution even if there was no real basis. As regards the evidence of the P.W.1 he submitted that there was a conscious attempt on the part of the P.W.1 to bring the story of alleged torture within the four corners of section 304B of the IPC which would be demonstrated from the fact that in his cross-examination he deposed that the money was demanded for the last time on 8th May 2003 and then he corrected himself by saying that it was demanded on 1st May 2003. Mr. Basu submitted that there is no evidence on the record to suggest that the deceased soon before her death was subjected to cruelty or harassment in connection with any demand for dowry. On the top of that, according to him, the evidence of P.W.1 does not suggest that there was any inimical relationship or at any rate any hostility between the parties. He also drew our attention to the written complaint, relevant portion whereof we already have set out hereinabove, which does not contain any allegation that soon before her death the victim was subjected to any cruelty or harassment in connection with any demand for dowry. He therefore submitted that no case under section 304B has been made out. He submitted that it has been admitted by the witnesses of the prosecution that the sisters-in-law used to reside in their matrimonial house. By way of an alternative submission he added that the conviction cannot be sustained and in any event the punishment inflicted under section 304B is disproportionate and harsh. He relied on a judgment in the case of Shyamal Pyne vs. State reported in 2006(3)CHN 101 wherein the following view was taken.
"Taking those aspects into consideration, the Apex Court reduced the sentence from rigorous imprisonment for life to ten years rigorous imprisonment. Acting on the principle that award of extreme punishment of imprisonment of life should be in rare case and not in every case and judging the nature of the case, we do feel inclined to reduce the sentence under section 304B from imprisonment for life to rigorous imprisonment for ten years. Accordingly, while confirming the conviction of the appellant under section 304B IPC, we reduce the sentence of imprisonment for life to rigorous imprisonment for ten years for commission of offence under section 304B."
He also relied on a judgment of the Apex court in the case of Ashok Kumar vs. State of Haryana reported in 2008(1) SCC (Cri) 304 for the following proposition:-
"the trial court was not justified in awarding the extreme penalty of life imprisonment. In the facts and circumstances of the case, we are of the view that ends of justice would be met in case the sentence of imprisonment awarded against the appellant is reduced to seven years' rigorous imprisonment."
Another very significant aspect of this case is that the cause of death of the victim Jhuma, according to a team of doctors constituted for the purpose of postmortem is as follows:-
"Death in our opinion was due to shock and hemorrhage from injury to brain caused by sudden blow with blunt weapon over it into temporal area which was homicidal and ante-mortem in nature."
The postmortem report has been marked ext.3. Postmortem was conducted by a board consisting of four doctors namely 1) Dr. Tapan Sankar Chakraborty, 2) Dr. Prashanta Kr. Giri, 3) Dr. Subhomay Sinha and 4) Dr. Sandip Sanyal, Superintendent of S.D. Hospital, Jhargram. Dr. Prashanta Kr. Giri, Dr. Tapan Sankar Chakrabory and Dr. Sandip Sanyal were called as witnesses. Each of the doctors has supported the postmortem report. They were P.Ws.4,5 and 6. P.W.4 Dr. Giri deposed as follows:-
" Tongue was protruded. Liquified blood draining to the ear. Profuse maggots were seen. Eyes were closed.
Abrasion with ecchomosis (black spot) about 1" below and to the left of point of chin 1"X ½"X ¼".
Abrasion with ecchomosis ½" above No.1 about 1"X ½"X ¼".
Linear mark of ecchomosis about 1½" X ½"X ¼" at left knee on the left side of patella.
Hoematoma on left parito temporal region area 1½" above the left ear. The size being 2"X 1"X½".
One faint ligature mark on the back of the neck near the hairline extended from 2" below right mastoid process to left mastoid process about 2" below, it was absent in fron of neck and no perchmentisation detected. However, hyoid bone was intact."
In cross-examination he emphatically deposed that "No hoemotoma can be created by falling the dead body upon any hard substance. If a person died by hanging, then in most cases no blood will come out through ear."
P.W.5 Dr. Tapan Sankar Chakraborty in his cross-examination deposed as follows:-
"It is not true that in most cases like this nature, blood will come out through ear. I did not see such example in any book. Prior to desection, I thoroughly watched the dead body. Abrasion was found below 1"X ½"X ¼" of the chin. That abrasion cannot be done by rubbing a rope on the neck. If any person falls on a hard substance or if any person uses lathi to assault, then such abrasion might have been occurred."
Before death of the victim became public, before the father of the victim reached her matrimonial home, P.W.3 a quack doctor had examined the victim. His observations and the advice rendered by him are as follows:-
"I found blood oozing from her ear. I advised them to take the patient to hospital. Then I went back to school."
P.W.3 is a Science Graduate. He has undergone training of R.M.P. and has been practising as a quack doctor. An emergency call was given to him intimating that Jhuma was seriously ill. He was not told by the inmates of the matrimonial house of the deceased that Jhuma had hanged herself. P.W.3 came to know that Jhuma hanged herself from his wife after he had gone home. Question naturally arises when did Jhuma hang herself?- after she was examined by the P.W.3?-that is an impossibility. Why did the inmates then not disclose to the P.W.3 that Jhuma had hanged herself if that were the truth? Another significant thing which the P.W.3 deposed was that when he visited the house of the accused persons he did not remember to have seen the husband of the deceased. In answer to question no.15 the husband of the deceased in his examination under section 313 Cr.P.C. has stated that at that point of time he was not at home. What is more significant is the fact that P.W.3 was not suggested that he never visited the house of the accused persons on the date of incident for the purpose of diagnosing or examining the deceased. The accused Lambodar, father-in-law of the deceased, in answer to question no.8 in his examination under section 313 Cr.P.C stated that the P.W.3, a quack doctor, did not visit his house on the date of the incident. The possibility of the death of the victim having been caused by her husband by a blunt weapon by hitting her and thereafter leaving the place of occurrence cannot be ruled out. This also explains why the P.W.3 during his visit did not find the husband of the deceased at the place of occurrence. But the difficulty is that the medical evidence is indecisive. P.W.4 deposed "We have seen the ligature mark, but I cannot say the reason which caused ligature mark". No one has seen the deceased in a hanging position. Only part of the rope tied with the rafter or beam of the first floor was found and seized. Therefore, there is no alternative but to accept the theory of suicide.
There is no dependable evidence to hold that the deceased soon before her death was subjected to cruelty or harassment in connection with any demand for dowry. However, the charge under section 498A has been well established against the husband and parents-in-law of the deceased. The appellant no.4 Khuku Piara cannot be nailed in because the prosecution witness no. 2 has admitted that the sisters-in-law used to reside in their respective matrimonial home. She is accordingly acquitted of both the charges. It appears from the record that she is now in jail. The appellant Khuku Piara should be released at once, if her detention is not required in any other case.
The conviction and the sentences of the appellants no.1,2 and 3 namely Renubala Dey, Lambodor Dey and Nirmal Kanti Dey as awarded by the learned Trial Court for the offence punishable under section 498A are upheld and confirmed. They are however acquitted of the charge under section 304B.
Section 306 of the I.P.C which reads as follows:-
"Abement of Suicide.- If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 113A of the Indian Evidence Act contains a presumption as to abetment of suicide which reads as follows:-
"Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
Proof of charge under section 498A provides necessary ingredients in order to draw a presumption under section 113A of the Evidence Act. It is on this basis and on the unusual facts and circumstances of this case we hold the appellant no.3 Nirmal Kanti Dey, the husband of the deceased Jhuma, guilty of the offence punishable under section 306 of the I.P.C. He is sentenced to suffer rigorous imprisonment for 10 years as also to pay fine of Rs.5000/-, in default to undergo simple imprisonment of three months. The substantive sentence as awarded by the learned Trial Court for the offence punishable under section 498A of I.P.C. and the substantive sentence as awarded by us under section 306 of I.P.C. in respect of appellant no.3 Nirmal Kanti Dey shall run concurrently.
The appellants no.1,2 and 3 are in custody and they are directed to serve out the remainder part of their sentences as indicated above. They shall get the benefit of set-off in terms of section 428 of Cr.P.C. out of the period of imprisonment already undergone.
The learned Trial Court is directed to issue necessary revised jail warrant as required by the Rules in respect of the aforesaid three appellants namely Renubala Dey, Lambodar Dey and Nirmal Kanti Dey.
The amount of fine, if realised shall be paid to the father of the deceased by way of compensation as also for future needs of the child left by the deceased.
With this modification, the appeal is partly allowed.
Lower Court Records with a copy of this judgment be transmitted forthwith to the learned Trial Court for information and necessary action.
Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates under compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
I agree. (KISHORE KUMAR PRASAD J.)