Calcutta High Court (Appellete Side)
Sukhdeb Barui & Ors vs The State Of West Bengal on 17 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
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. 108 of 2003
SUKHDEB BARUI & ORS.
Versus
The State of West Bengal
Amicus Curiae : Mr. Arun Kr. Maity, Ld. P.P.
For the State : Mr. Neguive Ahmed
Ms. Kakali Chatterjee
Heard on : 17.11.2017
Judgement on : 17.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 29th January, 2003 passed by the learned Additional District and Sessions Judge, Fast Track Court, Diamond Harbour, South 24 Parganas, in Sessions Trial No. 13(10) 2001 arising out of Sessions Case No. 114(9) 2001 convicting the appellants for commission of offence punishable under Section 304B and 498A IPC and sentencing the appellant nos. 1 and 2 to suffer imprisonment for ten years under Section 304B IPC and to suffer imprisonment for 2 years for the 2 offence punishable under Section 498A and to pay a fine of Rs.2000/-, in default, to suffer simple imprisonment for six months more and for the offence punishable under Section 498A with further direction that appellant no.1 shall suffer rigorous imprisonment for the aforesaid periods and appellant no.2 shall suffer simple imprisonment for the said periods and further directing the appellant nos. 3 and 4 to suffer imprisonment for seven years for the offence punishable under Section 304B IPC and to suffer imprisonment for one year for the offence punishable under Section 498A IPC and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for two months more with further direction that the appellant no.3 shall suffer simple imprisonment while appellant no.4 shall suffer rigorous imprisonment for the aforesaid periods, both the sentences run concurrently.
The prosecution case, as alleged, against the appellants is to the effect that appellant no.1 was the husband of the victim Kakali Barui while appellant nos. 2, 3 and 4 were the mother-in-law, father-in-law and brother-in-law respectively of the said housewife. The marriage took place between the victim and the appellant no.1 on 28th Jaistha, 1405 BS. At the time of marriage, Rs.12,000/- was paid in cash in addition to the gold ornaments and utensil given as dowry. Thereafter, Kakali started residing at her matrimonial home. It was alleged that the victim was subjected to assault and torture as the gold ornaments were not upto the expectation of her in-laws. Number of salishes were held at Debnagar village, that is the village of the appellants which was attended by the local 3 people where the appellants undertook they will not torture Kakali but they did not keep such promise and the torture continued. On 11th Sraban, 1408 BS at about 9 AM Mantu Paramanik, the neighbour of appellant no.1 informed the father of the victim, Kartik Middya, that the victim had died at 10 PM on 10th Sraban, 1408 BS. On receipt of such information, Kartik along with others went to village Debnagar and the local people informed that Kakali had been beaten to death. They saw the dead body of Kakali and found marks of injury. Kartik lodged criminal case at Namkhana P.S. being Namkhana PS Case No. 24 dated 27-07-2001 under Section 498A and 304B of the Indian Penal Code. The appellants were arrested, inquest was held over the dead body of the victim by Mr. Ananda Kumar Saha, Executive Magistrate, Kakdwip (PW 14). He found marks of injuries on the dead body of the victim. Post mortem examination was conducted over the dead body of the victim and in conclusion of investigation charge-sheet was filed under Section 498A and 304B of the Indian Penal Code. Charges were framed under Sections 498A/304B and also in the alternative under Section 302 IPC.
The appellants pleaded not guilty and claimed to be tried. Prosecution examined 17 witnesses in support of his case. The court also examined a number of witnesses as court-witness. Defence of the appellants was one of innocence and false implication. It was the specific defence of the appellants that the victim was suffering from paralysis and was issue less. 4 Accordingly, she took various medicines and suffered bruise injuries due to itching and allergies.
In conclusion of trial, the trial judge by judgment and order dated 29th January, 2003 convicted and sentenced the appellants, as aforesaid.
Nobody appears on behalf of the appellants. Mr. Arun Kumar Maiti, learned counsel is requested to appear and assist the Court as amicus curiae. He submitted that the evidence on record does not establish the ingredients of the offences punishable under Sections 498A/304B IPC. The evidence with regard to torture on the victim due to dissatisfaction over the quality of gold ornaments and other gifts are embellishments and had not been stated before the police officer during investigation. There is also no evidence that soon before the death, the victim had been subjected to cruelty on demands of dowry. There is no direct evidence that the appellants had assaulted the victim resulting in her injuries. The prosecution case has failed to prove its case beyond reasonable doubt and cannot be rely on the weakness of the defence version to prove its case. He accordingly prayed for acquittal of the appellants.
Mr. Ahamed with Ms. Chatterjee, learned Advocates for the State submit that the evidence on record clearly established that the victim-housewife suffered unnatural death within seven years of her marriage at her matrimonial home. The appellants were unable to explain away the injuries on her person particularly injury nos. 5 and 6 which according to PW 15, the Autopsy Surgeon, 5 were anti-mortem and likely to cause death. It is also submitted that there is ample evidence on record that the victim was subjected to torture at her matrimonial home due to non-fulfillment of dowry demands clearly establishing the ingredients of the offences punishable under Section 304B IPC and Section 498A IPC. Accordingly, they prayed for dismissal of the appeal.
P.Ws. 1 to 4 are the relations of the victim-housewife. P.W. 1 is the brother of the victim and the de facto complainant in the instant case. He deposed that victim was married to Sukdev on 28th Baishak, 1405 B.S. Rs.12,000/- was paid in cash, two bhories of gold ornaments and utensils were given in the marriage as dowry. After marriage the vicitm was subjected to torture at her matrimonial home. Salishes were held at least three or four times at village Debnagar but no salishnama was prepared. The accused persons assured at the time of salish that they will not torture his sister but they did not keep their word. On 11th Sraban, 1408 B.S. Mantu Paramanik informed him that his sister had died at 10.30 p.m. on 10th Sraban, that is, the previous night. He along with 10 to 15 villagers went to the village of the appellants and found the dead body of his sister with injury marks on various portions of the body. They went to Namkhana P.S. and informed the matter. The police came and took away the dead body. First information report was written by one Basudeb Dalapati as per his instruction. He put his signature thereon after reading the contents thereof (exbt. 1). In cross-examination, he stated that he visited the house of Kakali at least five to seven times after her 6 marriage. He went to Kakali's matrimonial home in the month of Baisakh and returned with Sukdeb and Kakali. The couple stayed at their house for two days and thereafter left. There are video shows in their village and the couple used to visit such video shows. Bhim Maity, member of local Panchayat and others attended the salish.
P.W. 2 is another brother of victim, Kakali. He deposed that marriage took place between Kakali and Sukdeb three years ago. Rs.12, 000/- and gold ornaments and utensils were given as dowry. After marriage Kakali resided at her in-laws house. The appellants subjected her to torture as they were not happy with the weight of the gold ornaments and the amount of cash. Three or four times salish were held in the house of the appellants. P.W. 2 expressed his inability to meet the further demands. On 11th Shraban, Mantu Pramanik informed about the death of his sister. They went to village Debnagar and found dead body of the victim in the courtyard. They found marks of injuries on various portions of her body. In cross-examination, he stated that Bhim was present at the salish. Kakali was issuless and eager to have a baby and used to take medicines from doctors in the village.
P.W. 3 is the father of Kakali. He deposed that Kakali was subjected to torture by her inlaws and were killed by them on 10th shraban, 1408 B.S. 7 P.W. 4 Reboti Mirdya is the mother of Kakali. She corroborated the evidence of her husband P.W. 3.
P.W. 5 is a villager from the parental village of Kakali. He deposed that Kakali was given in marriage on 28th Baisakh, 1405 B.S. It was the negotiated marriage. He was present at the time of negotiations. Rs.12,000/- was paid in cash and two bhoris of gold ornaments and some utensils were given. After marriage he came to know that the victim was tortured due to low quality of dowry items. He attended two salishes in the house of the appellants where the appellants were informed that it will not be possible to give any further dowry. He heard that Kakali died on 10th Shraban. He went to the house of the appellants along with P.W. 2 and others. They found the dead body of Kakali along with marks of injuries. Police was informed. He was cross-examined with regard to the contradictions and/or omissions vis-à-vis his previous statement to the police.
P.W. 6 is a witness to the inquest report. He proved his signature in the inquest report.
P.W. 7 is a neighbour of the matrimonial home of Kakali at village Debnagar. He deposed that he did not know how Kakali died. He stated that he did not find any marks of injuries and the relations between Kakali and the appellants were good.
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P.W. 8 another neighbour who has corroborated the evidence of P.W. 7. P.W. 9 deposed that Kakali used to take medicine in her pregnancy and used to become senseless. The relations between Kakali and appellants were good.
P.W. 10 Bhim Chandra Maity was the member of Namkhana gram panchayat. He deposed that he heard Kakali committed suicide. In cross- examination he stated that he had not attended any salish in the house of the appellants regarding Kakali.
P.W. 11 is a police officer attached to Diamond Harbour P.S. He drew up formal FIR exhibit 3 on the complaint of P.W. 1.
P.W. 12 and 13 deposed that the relations between Kakali and appellants were good.
P.W. 14 is the Deputy Magistrate who conducted inquest over the dead body of Kakali. He found red marks on the upper portion of the body mainly on the chest and also blood clot on the left eye and the right eye was coming out. He proved the inquest report exhibit - 4.
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P.W. 15 is the autopsy surgeon who held autopsy over the dead body of Kakali and found following injuries :
"1. One bruise 2 inch x one and half inch over right chest wall. Two inches below the nipple line and four inches right to mid-line at the level of 6th and 7th ribs found on dissection.
2. On dissection one bruise one and half inch x one inch over right malar (check) prominence.
3. One bruise four inches x three inches over the left side of back of chest just left to mid-line at the level of 7th cervical vertebra to 4th thoracic vertebra found on dissection.
4. On dissection one bruise five inches x four inches over the right side of front of chest wall from below the right clavicle upto the right 5th rib placed two inches right to mid-line.
5. One haematoma in the tissue of the scalp four inches x three inches over the parietal area (head) on the right side found on dissection.
6. Brownish red discolouration of the brain matter found on dissection. All the injuries showed evidence of vital reaction. The bruises and haematoma were brownish red in colour. No other injuries either revealed or concealed could be detected even after careful dissection and examination even under a hand lense".
He opined that death of victim was due the effect of injureis which were antemortem in nature. In cross-examination he stated that injury no. 5 and 6 were fatal injuries and may be caused due to contact with or by any hard and blunt object.
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P.W. 16 was a constable of the Namkhana P.S. On 27.07.2001 he carried the dead body of Kakali to Diamond Harbour S.D. Hospital for postmortem examination.
P.W. 17 is the investigating officer in the instant case. He visited the P.O. and found the dead body lying in a vanrickshaw. He prepared sketch map exhibit-6. He examined witnesses. He proved the inquest report exhibit 2/2. He prepared the seizure list exhibit-7. He investigated the case and submitted charge-sheet. In cross-examination, he stated that he did not examine de facto complainant separately. He did not make any query as to the physical condition of the victim. He did not make any enquiry as to whether victim was to take medicine for her pregnancy. He deposed that P.W. 2 did not tell him that torture of Kakali was due to gold ornaments which were lesser in weight and as the amount of cash was not adequate and that was the reason for assault. He did not say that in the salish he told it was not possible for them to meet further demands of dowry. He deposed that P.W. 5 did not tell him that salish was held in the house of the appellants over the issue of lesser amount of dowry. He did not state that the de facto complainant stated that it was not possible for him to give further dowry.
In the course of trial, the court examined the scriber of the first information report Basudeb Dalapati as C.W. 1. He proved the FIR exhibit - A. He stated that there were marks of injuries on the body of the victim. The 11 court also examined three other court witnesses, namely, Mantu Pramanik, Madan Majhi and Swapan Manna who were said to be local villagers who attended the salish. None of them, however, supported the prosecution case relating to salish.
From the aforesaid evidence on record, it is clear that the victim Kakali was married to Sukdeb on 28th Baisakh, 1405 pursuant to negotiations. It has also come on record that Rs.12,000/- was paid in cash along with gold ornaments and other utensils as dowry at the time of marriage. P.Ws. 1 to 5 have spoken of torture on the victim-housewife at the matrimonial home as the appellants were unhappy with the quality of gold ornaments or the amount of cash paid. However, it is argued that the evidence of the said witnesses with regard to torture on the victim due to dissatisfaction over dowry or holding of salish over such issues are embellishments and after thoughts as they do not find place in their previous statements to the police officer. On the other hand, there is evidence on record coming from the mouth of local villagers like P.Ws. 7 to 13 that the relationship between the victim and the appellants was cordial.
Hence, it is argued that the ingredients of the offence punishable under Section 304B of the Indian Penal Code has not been made out in the facts of the case.
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We, however, note from the evidence of the Deputy Magistrate, P.W. 14 and the doctor, P.W. 15 who conducted inquest and/or postmortem respectively over the dead body of the victim, Kakali had suffered external bruises as well as internal injuries in the scalp.
P.W. 15 had found internal hematoma under the scalp and bruises and haematoma which were brownish red discolouration of brain matter upon dissection. He also deposed that the said internal injuries were fatal in nature and could have been caused by hard blunt substance. It therefore, appears that the victim suffered a homicidal death within four corners of her matrimonial home. No plausible explanation was offered as to the circumstance in which the victim suffered such violent injuries at her matrimonial home. Furthermore, it is highly unlikely that the torture on the victim due to demands of dowry would be known to the villagers or outsiders beyond the family member of the victim. Hence, we are loath to disregard the evidence of P.Ws. 1 to 5 relating to torture on the housewife due to dissatisfaction over dowry on the score of minor contradictions or lack of corroboration or support from the evidence of neighbours.
Accordingly, we are of the view that the evidence on record shows that the housewife was subjected to torture over dowry demands which was continued till she suffered an unnatural death at her matrimonial home. 13
Coming to the issue of involvement of the appellants in the alleged torture of the victim soon before her unnatural death, we find that the evidence on record against appellant nos. 2 to 4 are general and omnibus in nature. However, there is evidence on record that dowries were given to the husband of the victim, that is, appellant no. 1. The extent of involvement of the in-laws, that is, appellant nos. 2 to 4 with regard to receipt of dowries and their role in the alleged torture of the victim over further dowry are not established with sufficient clarity. It is true P.Ws. 1 to 5 have sought to implicate all the in-laws of the housewife but their evidence suffer from lack of specification as to their roles in the matter of receipt of dowry and subjected the victim over further demands of dowry.
Hence, in the backdrop of the evidence on record which does not specify the overt acts of the in-laws in the matter of receipt of dowry and torture on the housewife soon before her death, we are of the opinion that though the prosecution has been able to prove its case against the husband of the deceased, appellant no. 1 beyond reasonable doubt, the appellant nos. 2 to 4 are entitled to the benefit of doubt.
In view of the aforesaid discussion, I uphold the conviction and sentence imposed on appellant no. 1. However, the conviction and sentence of appellant nos. 2 to 4 are set aside. They shall be released from their bail bonds after six months under Section 437A Cr.P.C.
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Period of detention suffered by the appellant no. 1 during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
The appeal is, partly allowed.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) Item no. 239 Aloke/Sanjib