Calcutta High Court (Appellete Side)
Debasish Ghosh vs The State Of West Bengal on 21 March, 2014
Author: Tapen Sen
Bench: Tapen Sen, R.K. Bag
HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
CRA 83 of 2011
Debasish Ghosh
-Vs-
The State of West Bengal
CORAM: HON'BLE MR. JUSTICE TAPEN SEN
HON'BLE MR. JUSTICE R.K. BAG
For the Appellant : Mr. Shoubhik Mitter,
Mr. Abhishek Sinha
For the State : Mr. Niladri Sekhar Ghosh
C.A.V on : 12/3/14
Judgment Delivered on : 21st March, 2014.
JUDGMENT
Tapen Sen J. :
This appeal is directed against the judgment dated 10.1.2011 passed in S.T No. 148 of 2009 by the learned Additional District and Sessions Judge, Fast Track Court-II, Howrah, convicting the appellant under Section 302 Indian Penal Code and sentencing him to undergo imprisonment for life with fine of Rs. 2,000/- and in default, 2 (Two) months of simple imprisonment. The period already undergone was directed to be set off.
2. On 17.2.2008 at about 8:45 A.M. one Mahananda Das made a written report before the Officer-in-Charge, Bantra P.S, Howrah in relation to an occurrence alleged to have taken place on 16.2.2008 at about 7 P.M. whereby and whereunder while naming this appellant and his mother Smt. Chaya Ghosh and one Sibani Ghosh (Ray) (sister-in-law of the deceased) as accused, he made the following allegations:-
It was stated that the elder daughter Manisha Das (Ghosh) was married to the appellant Debasish Ghosh in the month of April, 2002. The informant's daughter, at the relevant time, was a student of Tarasundari Girl's School of Kadamtala. She had fallen in love with the appellant and since the affair continued for some time, the appellant himself met the informant and requested him to give his daughter in marriage to him. Initially the informant did not agree but as proposals started coming more often, he agreed after discussing the same with his family members. In the month of April 2002, the marriage was solemnized under Hindu rites and customs.
Since the marriage, his daughter's husband, Debasish Ghosh (the appellant), the daughter's mother-in-law (Chaya Ghosh) and the daughter's sister-in-law (Sibani Ghosh) tortured the deceased creating pressure and demanding various things like steel almirah, bed, show case and clock and also asked several times to bring cash money. Though the economic condition of the informant was not very good, but, he nevertheless met some of the demands after borrowing money but, for not meeting all their demands, the mother-in-law and sister-in-law continued torturing his daughter. The sister-in-law was a resident of a nearby place and she used to come to their house almost everyday and torture the deceased. The deceased had told him and his wife about the torture as a result of which he had gone to her in-law's house several times to solve the matter so that there could be peace in the family but after each visit, the torture had increased. The deceased had made a Diary entry at the Bantra P.S whereafter the torture had momentarily decreased.
After a few days there was a lull but thereafter the torture increased again. The in- laws did not allow the informant's daughter to go to her father's house and also did not allow her to attend any social function of the family of her father. One day she was thrown out of the bed and was beaten up on her chest and belly. She was once beaten up on her back with a water pipe.
On 16-17/2/2008 at about 2 P.M. the mother-in-law of the deceased informed him that his daughter was ill and had been admitted in the Howrah General Hospital. The informant went there at 3:30 P.M but did not find anybody from the in-law's house but he came to learn from neighbouring people that his daughter had committed suicide by consuming poison. She had been brought and admitted at the Howrah Hospital at 12-12:30 midnight. The Doctor had declared her dead. The informant requested the Officer-in-Charge to take legal steps against the husband, mother-in-law and sister-in-law of the deceased. According to him, her death had been caused by their torture.
3. Charge-sheet in this case was submitted against all the 3 (Three) accused persons under Sections 498A/302/34 of the Indian Penal Code and the case was subsequently committed to the Court of the learned Sessions Judge, Howrah and thereafter, it was transferred to the Court of the learned Additional District and Sessions Judge, Fast Track Court -II, Howrah, for trial and disposal.
4. The inquest was conducted by the A.S.I, Howrah Police Station on 17.2.2008 at 9:22 A.M at the Howrah Hospital Morgue. All that the A.S.I stated in the inquest report was that the body of Manisha Ghosh (the deceased) was laid on a stretcher in the open space in front of the morgue and her head was towards the north and the body was laid on her back. When the body was turned in the presence of witnesses, it was seen that her hair was black and long with clips and there was vermillion on her forehead. Her eyes were closed, mouth was slightly open, articles from her stomach had oozed out from the nose and the mouth. She was of good health, fair complexion, 5'3" in height. She was wearing white bangle on her left and right hands as well as a churi. Some stool could be seen and a black ribbon with a talisman (tabiz) could be seen around her waist. She was wearing a violet and white coloured sleeveless nighty. The A.S.I observed that nothing more than what he had noticed, could be seen with naked eyes. Having made such a report he narrated the contents of the F.I.R and then sent the dead-body to the Howrah Police Morgue for post- mortem.
5. Another inquest was held on the same day at 1:40 P.M by Shri Rabindranath Hait, Executive Magistrate, Howrah who was then posted as Deputy Magistrate cum Deputy Collector, Howrah. The relevant portions of his report under the heading "the description of different parts of the body"
were as follows:--
(i) Head - covered with black hair, no injury appeared.
(ii) Neck - nothing appeared.
(iii) Back - no injury appeared.
(iv) Throat - Do.
Under the heading "number and nature of injury marks as found on the body of the deceased", it was written as follows:-
Nothing appeared.
6. The body was then subjected to post-mortem and as per the post-mortem report, there was a circular mark present over the neck and it was circular over the neck (Adam's Apple). The opinion of the Doctor was strangulation of the Hyoid Bone and the death was due to strangulation which was ante-mortem and homicidal in nature.
7. Before we proceed to deal with the matter we have to make a comment with regard to the post-mortem report. The Autopsy Surgeon was not examined and therefore his opinion on the post-mortem report cannot be taken as admissible in evidence. Moreover, the post-mortem which was on record was a mere carbon copy. The original was never brought on record. In a judgment of the Hon'ble Supreme Court passed in the case of Vijender vs The State of Delhi reported in 1997 SCC (Cr)857 it has been held inter-alia that carbon copy of the post- mortem report was not admissible in evidence.
8. Having said so, we will now proceed with the other aspects of this case and specially the evidences of the various P.Ws.
9. Mahananda Das, the informant is P.W 1. Having narrated briefly what he had said in the F.I.R, he stated in Court that he had come to learn that his daughter had died as a result of committing suicide by consuming poison and that he could not say as to why she had consumed poison. He repeated this fact when he stated that even from the hospital authorities he had come to learn that his daughter had consumed poison. He stated that his daughter's in-laws had also told him so.
10. P.W 2 is a neighbour being one Smt. Purnima Ghosh. She has also stated in Court that Manisha died as a result of consuming poison.
11. P.W 3 is also a neighbour namely Surya Kanta Jashu. He also stated that Manisha had consumed poison.
12. P.W 9 is the mother of the deceased namely Smt. Alpana Das. Even she has stated in Court that at about 2 A.M on a night of 2 (Two) years ago she came to learn that her daughter had been hospitalized and subsequently she learnt that she had also expired. She stated that initially she had been told that her daughter had become ill and had been admitted in the hospital and when they went to the hospital they came to learn that her daughter had consumed poison. This witness was declared hostile but the fact remains that even this witness had stated that the deceased had consumed poison.
13. Thus, from the perusal of the evidences of some of the premier witnesses being the father and the mother as well as the neighbours, it is evident that each one of them had referred to the death as having occurred on account of consuming poison. Even the charge that was framed being the 3rd charge stated that:-
"That you and your family members on or about the 16th day of February, 2008 at about 12-12:30 at night committed murder intentionally causing the death of Manisha Ghosh with the knowledge and in furtherance of common intention that if she has taken poison, it will be harmful to her."
(S.I.C)
14. Thus, even the charge that was framed for being tried was of consuming poison but the section that was inserted was 302 Indian Penal Code. In other words the appellant was tried under Section 302 although the charge framed was that "if she had taken poison it would have been harmful for her". The charge, therefore, in the opinion of this Court, is itself defective. Moreover, what is further strange is one of the questions that was put to the appellant under Section 313 Cr.P.C. was:-
" it is seen from the deposition that after her demise, her father made a written complaint at Bantra P.S that since marriage, you, your mother and sister created pressure on her for more money and other things and in demand of those, you tortured and beaten her up. And due to this torture, your wife compelled to commit suicide. Do you have anything to say in this Court?"
(S.I.C. but emphasis by underlining is by this Court) This is a really strange case where the appellant is being tried under Section 302 of the Indian Penal Code but the question that was put to him under Section 313 was for an offence committed under Section 306 of the Indian Penal Code. Another very important aspect of this case is that even if we consider the post- mortem report which, according to the Doctor, the Hyoid Bone was broken due to strangulation which was ante-mortem and homicidal in nature, even then we have to consider the fact that Manisha was taken to the hospital at 12.20 A.M (See Ext-11) and she died at 1:30 A.M. The fact that she was taken to the hospital at about 11 P.M would be evident from the evidences of Surya Kanta Jashu (P.W 3), Surajit Mitra (P.W 5). The fact that she died at 1:30 A.M would be evident from the evidence of P.W 16 (Dr. Indranil Chaudhury) who was on duty at the Howrah State General Hospital and before whom Manisha had been admitted with a complaint of "lice killer poison". He had stated that she died at 1:30 A.M at night. Apart from the fact that this witness had stated that it was a case of "lice killer poison", it would be therefore evident that for 2 (Two) hours (11:30 P.M to 1:30 A.M), Manisha was alive having died at 1:30 A.M. A person whose Hyoid Bone is broken, would not even survive for a minute. Therefore the case of strangulation as built up for the first time in the post- mortem report, in the opinion of this Court, is a figment of imagination.
It may also be relevant at this stage to refer to the evidence of P.W 14 (S.I. Durgaprasad Nandi) who was the 3rd I.O. in the instant case. He has stated that he examined various people including Alpana Das, that is, the mother of the deceased who had stated before him that her daughter had been tortured and also pressurized to bring money and that her daughter had reported the incident to them and also that her daughter had committed suicide due to unbearable torture by the accused persons. It is thus evident that a case of having consumed poison or committing suicide suddenly turned into a charge under Section 302 / 34 of the Indian Penal Code. The charge therefore was defective on this issue also. Moreover, there was no charge of strangulation. Even the inquest reports of both the A.S.Is as well as of the Executive Magistrate say that there was no injury at all either on the neck or on the back or on the throat. The inquest report prepared by the A.S.I merely describes the apparels that she was wearing and says that there was nothing more to be seen from the naked eyes. In other words marks of violence or of strangulation either homicidal or ante-mortem in nature were totally absent. From a perusal of the aforementioned facts and circumstances of the case it is evident that the post-mortem report being inadmissible in evidence since Autopsy Surgeon was not examined and since the carbon copy thereof was only on record and therefore, the learned Trial Judge committed a serious illegality by taking into consideration that post-mortem report. In other words, he took into consideration an inadmissible evidence for purposes of making it admissible and for giving the entire case a texture of murder from that of suicide.
15. This, in the opinion of this Court was totally unwarranted. This, therefore, is a case where there are so many missing links in the chain of circumstances. They are, firstly, we have not been able to find any motive for the crime. The inquest report clearly states that there are no injuries. The post-mortem report is inadmissible because of the non-examination of the Autopsy Surgeon and also for bringing on record the carbon copy thereof and not the original. The cause of death becomes doubtful because most of the premier witnesses had stated that she died as a result of consuming poison while some say that it was a case of suicide but the appellant was tried for murder. The last link in the chain of circumstances are the evidences, some of which go to show these glaring defects.
16. For the reasons stated above this Court is absolutely certain that the conviction and sentence of the appellant cannot be sustained. The appeal is therefore allowed and the conviction and sentence of the appellant is hereby set aside. The petitioner must be set at liberty forthwith if not wanted in any other case.
17. Let the Lower Court Records be sent down immediately.
(Tapen Sen, J.) I agree (R.K. Bag, J.) A.F.R / N.A.F.R