Calcutta High Court (Appellete Side)
Goutam Mondal & Ors vs The State Of West Bengal on 25 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. 297 of 2003
Goutam Mondal & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. Nabanil De
For the State : Mr. Amartya Ghosh
Heard On : 25.08.2014
Judgement On : 25.08.2014
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 21.07.2003 passed by the learned Additional Sessions Judge, Tamluk, Purba Midnapore convicting the appellants for commission of offence punishable under Section 498A of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for six 2 months more and further convicting the appellants under Section 306 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/- each in default to suffer rigorous imprisonment for one year more. Both the sentences to run concurrently and with a further direction that if half of the fine amount, if realised, shall be paid to the parents of the deceased Chabi Rani Mondal.
The prosecution case as alleged against the appellants is as follows : The victim Chabi Rani Bharati was married to the appellant no. 1 in the month of Magh, 1399 as per Hindu rites and customs. They lived as husband and wife. At the time of marriage, P.W. 1, the father of the victim, Narayan Chandra Bharati, paid a sum of Rs.20,000/- to the appellant no. 2, father of the appellant no. 1. It was settled that a further sum of Rs.5,000/- would be paid after marriage but the said amount could not be paid. As a result, the appellants assaulted and insulted the victim. It is further alleged that the appellants no. 1 and 2 instigated her to commit suicide by consuming poison. When the parents of Chabi came to know of such torture inflicted on her by the appellants they tried to make an amicable settlement of the dispute by going to the house of the accused persons. However, the torture continued unabated. The accused Goutam Mondal did not share bed with victim 3 Chabi and thereby inflicted mental torture on her. Ultimately, P.W. 1 was informed that victim was admitted to Mahisadal Hospital. On arrival at Mahisadal Hospital he came to learn that the victim was shifted to Tamluk Sub-divisional Hospital as she had consumed poison. The victim died an unnatural death on 28th November, 1994. In respect of such unnatural death of the victim, U.D. Case No. 295/94 dated 28th November, 1994 was started at Tamluk Police Station on the basis of the written complaint received from Dr. T. K. Maity, Medical Officer of Tamluk Sub-divisional Hospital. The inquest on the dead body of the victim was conducted by S. N. Das, Executive Magistrate, Tamluk. On the basis of the written complaint of Narayan Chandra Bharati, P.W. 1, father of the victim, Mahisadal P. S. Case No. 76/94 dated 30.11.1994 under Section 498A/304B of the Indian Penal Code was registered against the appellants. In conclusion of investigation charge- sheet was filed against the appellants under Section 498A, 304B, 306 of the Indian Penal Code. The case, being sessions a triable one, was committed to the Court of Sessions, Purba Medinipur and transferred to the Court of Additional Sessions Judge, Tamluk for trial and disposal. Charges were framed under Section 498A and 306 of the Indian Penal Code against the appellants. Prosecution examined as many as thirteen 4 witnesses and exhibited a number of documents. The case of the appellants was one of innocence and false implication. It was specific case of the appellants that there was no marriage between the victim and appellant no. 1. Victim was earlier marriage to Uttam (elder brother of appellant no. 1) who had expired. Thereafter the victim had been forcibly sent to the house of the appellants where she committed suicide. In conclusion of trial, learned Trial Judge by judgement and order dated 21.07.2003 convicted the appellants for commission of offence punishable under Section 498A of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for six months more and further convicted the appellants under Section 306 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/- each in default to suffer rigorous imprisonment for one year more. Both the sentences to run concurrently with a further direction that half of the fine amount, if realised, shall be paid to the parents of the deceased Chabi Rani Mondal.
Mr. De, learned Counsel appearing on behalf of the appellants, submits that marriage between the appellant no. 1 and the victim had not been proved beyond reasonable doubt. 5 Earlier the victim was married with Uttam. It appears from the evidence of P.Ws. 4, 5 and 8 that there was no marriage between the victim and Goutam. He further submits that in the inquest report it is stated that marriage between the victim and Goutam was for three years whereas P.W. 1 stated that the victim committed suicide within eight to nine months of marriage and P.W. 2, mother of the victim, stated that she committed suicide within ten to eleven months of her marriage. Date of marriage with Goutam has not been established with certainty. He submits that cause of death also has not been proved beyond reasonable doubt. Chemical examination report has not been produced. He submits that the evidence with regard to torture of victim on demand of dowry is clearly embellished as such version has been stated for the first time in Court. He further submits that evidence of independent witnesses namely P.Ws 9 and 10 were discredited in view of contradictions elicited in respect of their earlier statement to the Investigating Officer, P.W. 13.
Mr. Ghosh, learned Junior Standing Counsel appearing on behalf of the State, submits that it is the consistent version of prosecution witnesses viz. P.Ws 1,2,3,9 and 10 that marriage had been performed between appellant no. 1 and the victim. Victim was described as the wife of the appellant no. 1 at 6 Tamluk Sub-divisional Hospital as would be evident from the communication made by Dr. T.K. Maity to P.W. 12. On the basis of such communication she was also described as such in the inquest report. He submits that the erroneous recording as to duration of marriage between the appellant no. 1 and the victim is inadmissible in law. He submits that the evidence of P.W 4 and 5 is unreliable as their deposition in Court is inconsistent with their earlier statement before the Investigating Officer, P.W. 13. He further submits that the evidence of P.W. 8 ought not to be believed in the light of the consistent version of other witnesses. He submits that the case of consuming poison by victim has neither been disputed by the appellants in the course of cross-examination nor at the time of their examination under Section 313 of the Code of Criminal Procedure. The evidence of P.W. 6 who conducted the post mortem examination of the victim is conclusive in that regard. He further submits that the allegations of torture on account of dowry have been proved and therefore the conviction of the appellants do not require any interference.
Let me examine the evidence adduced by the prosecution in the case. P.W. 1 is the father of the victim and the defacto complainant of the case. He stated that at the time of marriage Rs.20,000/- was paid to the appellant no. 2. Further amount of 7 Rs.5,000/- was agreed to be paid after marriage. The amount could not be paid and the victim was assaulted and insulted. She narrated her tale of woes to him and P.W. 2, her mother, whenever she came to his house. Subsequently, they were informed that as their daughter was suffering from some disease she had been hospitalised at Mahisadal Hospital. When he went there, he was told that the victim had taken poison and had been removed to Tamluk Sub-divisional Hospital. At Tamluk Hospital he found appellant no. 1 who fled away on seeing him there. Her daughter was lying dead. He stated that within eight to nine months of marriage the victim committed suicide by consuming poison due to torture. He proved the First Information Report in the instant case. In cross- examination he admitted that his daughter was earlier married to Uttam, elder brother of Goutam, and at the time of marriage he gave dowry. Uttam died within eight to nine months after marriage. Thereafter marriage of the victim was again solemnised with the appellant no. 1 Goutam. He admitted that there was reconciliation at the house of the appellant no. 1. He stated that the appellant no. 1 had an affair with a woman in the locality. P.W. 2, is the mother of the victim. She stated that at the time of marriage Rs. 20,000/- was paid to the appellant no. 2. There was a settlement that remaining part of dowry of 8 Rs.5,000/- will be paid after marriage. Due to non-payment of the said amount the victim was assaulted and mentally tortured. She stated that they went to the house of the accused persons with a request not to subject her to cruelty. She also stated that within ten to eleven months after marriage the victim committed suicide by consuming poison. She further stated that the victim was married with Uttam earlier who had died after marriage. After the death she came back to her parental house. In cross-examination she stated that the victim told her that Goutam did not share bed with her and used to spend night with his father. She stated that she did not find any injury on the person of Chabi. She further stated that the mother of Goutam (appellant no. 3) stated to her that Goutam had an affair with another woman. P.W. 3 is the maternal uncle of the victim. He stated that at the time of marriage Rs.20,000/- was paid to the accused and remaining Rs.5,000/- could not be paid after marriage, as promised. For such non- payment the victim was subjected to torture and the torture begun four to five months after her marriage. In the house of P.W. 2, Chabi narrated all these things to him. He stated that he accompanied P.W. 1 to the house of the accused persons and requested them not to subject her to cruelty. Subsequently, he was informed that Chabi had fallen ill. He rushed to Tamluk 9 Hospital and found the dead body of the victim. He alongwith others took the body of Chabi to the house of the de facto complainant and from there to the burning ghat. In cross- examination, he stated that Chabi told him that Goutam did not like to share bed with her and used to spend night with his father. He further stated that he came to know that Goutam had an affair with another woman. He admitted that Chabi was married to Uttam earlier. P.Ws 4 and 5 have been declared as hostile. They stated that Chabi was the wife of Uttam and that she complained of abdominal pain and had to be taken to a doctor where she died. In cross-examination P.W. 4 stated that Chabi used to come to the house of her in-laws from her parental home. P.W. 8 is another witness who is the neighbour of the appellants. He stated that Goutam never married any girl and that Uttam's wife had died at hospital. In cross- examination he stated that there was a proposal for marriage with Goutam but it was not accepted by her in-laws. P.Ws 9 and 10 are the neighbours of P.W. 1. P.W. 9 stated that Chabi was married with Uttam and after the death of Uttam she was married with Goutam. He further stated that Chabi on going to her parental home narrated the incident of torture and cruelty upon her. He stated that a salish was convened. He submitted that P.W. 1 assured that arrear dowry would be paid within a 10 particular date. Thereafter he stated that the victim was died by consuming poison. In cross-examination he admitted that he was not present in the salish and that he did not know when any amount was paid and he was also not aware whether any amount was paid at all. P.W. 10 corroborated P.W. 9 with regard to the marriage of Chabi with Goutam after the death of Uttam, her earlier husband. He stated that Rs.20,000/- was paid as dowry and the accused demanded Rs.5000/- more. Chabi narrated the incident of cruelty whenever she came to her parental house. He also stated that he had attended the salish convened by the accused where Goutam admitted he had an affair with another girl and Goutam assured that he would not continue such illicit relationship. P.W. 6 is the medical officer who held post mortem examination over the victim. On examination, he found that the stomach was filled with liquid contents and there was a smell. He exhibited the post mortem report in the instant case. In cross-examination he stated that from the smell of the liquid in the stomach he came to the conclusion that it was a case of poisoning. He admitted that the viscera report had not been obtained. P.W. 7 was the Deputy Magistrate and Deputy Collector, Tamluk at the material point of time. He proved the inquest report in the instant case. P .W. 11 was a police officer attached to the 11 Mahisadal Police Station who received the First Information Report. P.W. 12 is an A.S.I. of police who was then attached to Tamluk Police Station. He stated that he received a complaint from Dr. T. K. Maity who informed that one Chabi Mondal, wife of Goutam Mondal died by consuming poison. On the basis of such written complaint, Tamluk Police Station U.D. Case No. 295/94 dated 28th November, 1994 was commenced. P.W. 13 is the Investigating Officer of the instant case. He stated that he prepared a sketch map of the case of occurrence. He collected inquest report as well as post mortem report. He stated that he was unable to collect the viscera report. In conclusion of investigation he filed charge-sheet. In cross-examination, he stated that he did not investigate as to whether the victim Chabirani lived with accused Goutam as husband and wife. He did not investigate as to whether Chabi was suffering from any disease.
First is the issue as to whether Chabi was married to Goutam or not. P.Ws 4,5 and 8 stated that no marriage had taken place between the victim Chabi and Goutam. P.W. 8 had categorically stated that Chabi was the wife of Uttam and had died after one year of marriage. On the other hand, it is the consistent evidence of P.Ws. 1, 2 and 3, i.e. father, mother and maternal uncle of the victim that after the death of Uttam, 12 marriage was entered into between Chabi and Goutam upon payment of dowry of Rs.20,000/- and on promise of further dowry of Rs.5000/- to be paid after marriage. Such evidence was corroborated by the deposition of the independent witnesses of P.Ws. 9 and 10.
P.Ws. 4 and 5 was declared hostile and have been extensively cross-examined with regard to contradictions with their previous statements recorded by the Investigating Officer, P.W. 13. From such cross-examination it is evident that they are denying marriage for the first time in Court. In view of such patent contradiction between their evidence in Court and their earlier statements before police, it is highly unreliable to come to a finding that there was no marriage between Chabi and appellant no. 1 on the basis of their evidence. P.W. 8 in his evidence stated Chabi was married to Uttam and that Goutam had not married any girl. Such evidence is against the consistent version of marriage as portrayed by P.Ws. 1, 2, 3, 9 and 10, as aforesaid. P.Ws. 1,2 and 3 are the relations of Chabi. They are therefore most probable witnesses as to the marital status of Chabi vis-à-vis P.W. 8, a neighbour and stranger to the personal life of the victim. Evidence of the relations are also corroborated by P.Ws. 9 and 10, independent witnesses. 13
P.W. 12, A.S.I., attached to Tamluk Police Station, stated that the U.D. case, being case No. 295 of 1994 dated 28.11.1994 was registered on the basis of information given by Dr. T.K. Maity of Tamluk Hospital that one Chabi Mondal, wife of Goutam Mondal aged about 22 years of village Bangagora had died at the said hospital. On the basis of such information, an unnatural death case was registered and inquest report was prepared. In the inquest report, being Exbt. 3, prepared by P.W. 7, Chabi has been described as wife of Goutam Mondal. The appellants had admitted Chabi at Tamluk Hospital. It is, therefore, clear that the appellants at the time of admission of Chabi described her as the wife of Goutam Mondal and such fact is also reflected in the inquest report. In view of such conduct of the appellants in describing the victim as the wife of Goutam Mondal, it is difficult to accept the solitary version of P.W. 8 that Goutam had not married any girl and Chabi was the wife of Uttam Mondal (since deceased). It is stated in the inquest report that the victim was married three years ago. Source of knowledge of such fact is not stated. It is trite law that any reported fact stated in the inquest report is inadmissible in law. That apart, it is nobody's case that Chabi was married to any person three years prior to her death. Therefore, such statement in the inquest report, which is 14 patently inadmissible, is of no assistance to the defence. The evidence on record, particularly conduct of the appellants in describing Chabi as wife of Goutam at Tamluk S D Hospital as evidence from the intimation of Dr. T.K. Maity to P.W. 12 establishes Chabi was married to Goutam in the month of Magh, 1399 B.S. after the death of Uttam (elder brother of Goutam) to whom the victim was earlier married.
Secondly, comes the issue whether Chabi was subjected to mental and physical torture at her matrimonial home. Evidence of P.Ws. 1, 2 and 3, the relations of the victim show that she was subjected to mental and physical torture by the appellants on demands of further dowry. Such evidence is also corroborated by P.Ws. 9 and 10. In cross-examination, the prosecution case with regard to torture over demand of dowry remains unshaken, although there is some embellishment variations relating to the nature and extent of torture. In the face of such consistent evidence, I am constrained to hold that the victim was subjected to harassment and/or torture due to further demands of dowry.
Thirdly, is the issue as to whether Chabi died by consuming poison at her matrimonial home within a year of her marriage with Goutam. It is admitted that Chabi was at the home of the appellants from where she was initially shifted to 15 the hospital at Mahisadal and, thereafter to Tamluk Sub- divisional hospital where she expired. P.W. 6, post mortem doctor has stated that he found foul smelling liquid in the stomach of the victim. However, viscera report has not been produced in this case. During cross-examination, doctor stated that he came to the conclusion that it was a case of poisoning from smell emanating from the liquid contents in the stomach of the victim. There is no evidence on record that Chabi was suffering from any ailment. In cross-examination P.W. 6 has stated that the case of death is one of poisoning. No evidence has been adduced on behalf of defence to improbablise such conclusion and to make out a case that Chabi died due to natural causes. Accordingly, I am of the view that the prosecution case that the victim committed suicide by poisoning has been established beyond reasonable doubt.
Finally, comes the issue as to why the victim committed suicide. I find from the evidence of P.Ws. 1, 2 and 3 that due to torture meted out to the victim during her lifetime, a salish was held at the house of the appellants. In the First Information Report it is stated that during salish it was disclosed that appellant no. 1 was having an affair with another woman and that the other appellants undertook that they would pursue him to mend his ways. Few months thereafter, 16 the victim committed suicide by consuming poison. Such fact also transpires from the evidence of P.W. 10 who stated that he was present at the time of salish when appellant no. 1 undertook to mend his ways and not to continue with illicit relation with another woman. The evidence of P.W. 9 with regard to with regard to salish, however, is unreliable as he has admitted in his cross-examination that he was not present at the time of salish. P.W. 1 has stated that he came to know from the womenfolk of the house that the appellant no. 1 was not sleeping with the victim and spending night with his father. The P.Ws. 2 and 3 also corroborated such evidence.
From the aforesaid evidence it appears that initially there was some torture upon the victim over demands of further dowry. Four/five months after marriage it was divulged that there was illicit relation between the appellant no. 1 and another woman and that appellant no. 1 was not recognizing the victim as his wife and was not sleeping with her. There is no evidence that after the salish the victim had met the prosecution witness. Few months after the salish she committed suicide by poisoning. In this backdrop I am constrained to hold that the reason for commission of suicide of the victim appears to be the refusal by the appellant no. 1 to recognize her as his wife and subject her to mental trauma by 17 not sleeping with her. Some evidence has been led that assurance was held out by the other appellants that they would ensure that he mends his ways. Appellant No. 1 is a major individual and it is difficult to believe that his parents, appellant nos. 2 and 3, would be in a position to mend his wayward ways. Accordingly, the abetment to the commission of suicide by the victim, in the factual matrix of the case, appears to be the ill- treatment on her by the appellant no. 1 in refusing to acknowledge her as his wife by not sleeping with her and having illicit relation with another woman. The role of the appellant nos. 2 and 3 in this regard appears to be marginal and insignificant and cannot be said to be sufficient to uphold the conviction of the said appellants in abetting the suicide of the victim.
For the aforesaid reasons, I uphold the conviction and sentence of the appellant no. 1 and acquit the appellant nos. 2 and 3 of the charge under Section 306 of the Indian Penal Code. However, I find that the appellant no. 2 had received the dowry of Rs.20,000/- at the time of marriage and that there is evidence on record that they had subjected the victim to torture for non-fulfillment of further demand of Rs.5,000/-. Accordingly, I hold appellant nos. 2 and 3 guilty of offence punishable under Section 498A of the Indian Penal Code. 18 However, bearing in mind their age and other attending facts and circumstances of the case, I reduce the sentence imposed upon them and direct they shall suffer rigorous imprisonment for one year and pay a fine of Rs.2,000/- each, in default to suffer rigorous imprisonment for three months more.
The appeal is allowed to the aforesaid extent.
The appellants are directed to surrender before the Trial Curt within a month to serve out their sentences in accordance with law.
Let Lower Court records along with a copy of the judgment be sent down to the concerned Court immediately.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.
(Joymalya Bagchi, J.)