Calcutta High Court (Appellete Side)
Abhijit Mondal & Ors vs The State Of West Bengal on 28 January, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl.No. 94
AS/RKD
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. 394 of 2015
Abhijit Mondal & Ors.
-Vs-
The State of West Bengal
For the appellant : Mr. Sourav Chatterjee, Adv.,
Mr. Suman Das Adhikary, Adv.,
Mr. Aniruddha Bhattacharyya, Adv.
For the State : Mr. Arijit Ganguly, Adv.,
Mr. A. Ghatak, Adv.
Heard on : 28.01.2019
Judgment on : 28.01.2019
Joymalya Bagchi, J. :-
At the outset, it is submitted that the appellant no.2, Lakshan Mondal @
Laxman Mondal has expired. Death certificate has been placed on record. Hence,
it is recorded that the appeal has abated so far as the appellant no. 2 is
concerned.
The appeal is directed against the judgment and order dated 21.04.2015
and 22.04.2015 passed by the learned Additional District and Sessions Judge,
Ranaghat, Nadia in connection with Sessions Trial No. 9(4)2008 corresponding to
S. C. No.35 (4) 2005 convicting the appellants for commission of offence
punishable under Sections 498A/304B/306/34 of the Indian Penal Code and
2
sentencing them to suffer rigorous imprisonment for three years each and to pay
fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for six months
more for the offence punishable under Section 498A of the Indian Penal Code,
sentencing them to suffer rigorous imprisonment for ten years each and also to
pay a fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for six
months more for the offence punishable under Section 304B/34 of the Indian
Penal Code and further sentencing them to suffer rigorous imprisonment for ten
years each and also to pay a fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for six months more for the offence punishable under Section
306/34 of the Indian Penal Code; all the sentences to run concurrently.
The prosecution case as alleged against the appellants is to the effect that
the victim housewife, Shipra was married to the appellant No.1 Abhijit Mondal on
28th Baisakh, 1407 B.S. After the marriage, she was subjected to torture on
demands of money. She was sent to her parental home when she was pregnant.
After the birth of the child, she went back with her aunt along with her 14-day old
daughter to her matrimonial home but the appellants abused and assaulted her
and drove her away. She lodged a complaint dated 16.1.2002 at 8.26 hours. On
18.2.2002at 5.00 P.M. she committed suicide by jumping before a moving train due to torture meted out to her by the appellants. Over this issue, her mother Swapna Bairaggya (P.W. 1) lodged written complaint resulting in registration of Santipur Police Station Case No.38 of 2002 dated 18.2.2002 under Sections 498A/306 of the Indian Penal Code. Inquest and post mortem were conducted over the dead body of the victim and charge sheet was filed. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the learned Additional District and Sessions Judge, Ranaghat, Nadia for trial. Charges under Sections 498A/304B/306/34 of the Indian Penal Code were 3 framed against the accused persons. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgement and order dated 21.04.2015 and 22.04.2015 convicted and sentenced the appellants, as aforesaid.
Mr. Sourav Chatterjee, learned Counsel appearing for the appellants submitted that there is no whisper in the FIR that dowry was paid at the time of marriage. The allegations with regard to torture on demands of further dowry is bereft of any material particulars as to time and nature of such demand. It is further submitted that the prosecution witnesses particularly P.W.1 has given a complete go-by to the First Information Report lodged by her. While in the First Information Report it has been alleged that the victim went with her aunt along with her 14-day old child to her matrimonial home, there is no whisper of the aunt accompanying the victim to her matrimonial home in her deposition in Court. Furthermore, in Court P.W.1 prevaricated from her earlier version and stated that the victim went to the tea stall of the appellants at the railway station and was assaulted by her mother-in-law. Specific date of the aforesaid incident has not been stated in court. On the other hand, P.W. 18 (I.O.) stated he did not find any diary on 16.1.2002 as stated in FIR. Even if the alleged incident is believed, there is a gap of more than a month between the incident and the death of the victim on 18.2.2002. Post mortem Doctor could not conclusively opine that the death was suicidal. Hence, the prosecution case is not proved beyond reasonable doubt and the appellants are entitled to get an order of acquittal.
On the other hand, Mr. Ghatak, learned Advocate appearing for the State argued that the evidence of prosecution witnesses particularly, P.Ws.1, 2, 3 & 6 stated that the victim was subjected to torture over further demands of dowry. 4 First Information Report need not be an encyclopaedia of all facts. The death of the victim was unnatural and had occurred within two years of her marriage. All the prosecution witnesses stated that she committed suicide by throwing herself in front of a moving train. The defence plea of accidental death is not borne out from the facts and circumstances of the case. Hence, the appeal is liable to be dismissed.
Let me discuss the evidence on record in the order to appreciate the rival versions pleaded across the Bar.
P.Ws.1 to 3 and 6 are the relations of the victim who supported the prosecution case. P.W.1, Smt. Swapna Bairaggya is her mother and the de-facto complainant. She deposed after the death of her husband, she used to reside at her father's place Dignagar within Santipur Police Station. She had two daughters and one son. The victim Shipra was given in marriage to Abhijit around two and a half years prior to the incident. At the time of marriage, she paid cash, gold ornaments, cycle and other articles. The accused persons lived in a joint family. They used to assault and inflict torture upon her daughter as she was unable to pay money demanded by them. Shipra gave birth to a female child at her residence. Thereafter, Shipra along with the 14-day old child went to her in laws house in the afternoon. The appellant no.3, Suchitra @ Sumitra Mondal, mother- in-law of the victim, snatched away the baby and threw out Shipra. In the course of deposition, she corrected herself and stated that the victim had gone to the tea- stall of the appellants situated on the platform of Santipur railway station where her mother-in-law assaulted her. Thereafter, the victim returned. She did not inform the police. At 4.00 A.M., her daughter, the victim committed suicide by throwing herself on railway track. She lodged written complaint which was scribed by Aurobindo Pramanik, P.W.11. She put her signature on the written complaint. 5
In cross-examination, she stated that she had visited the house of the appellants twice or thrice. Her son-in-law also visited her house with her daughter. They stayed for the night once or twice. She works as cook at Ballygunj in Kolkata. She did not inform about the incident of torture and assault during the life time of the victim to the local panchayat or police. The sadh ceremony of her daughter was held in the house of the appellants. Thereafter, she contradicted herself and stated though she paid money no ceremony was held and the appellants assaulted the victim on that day. She was extensively cross-examined with regard to contradictions in her deposition with in the First Information Report.
P.W.2, Biswajit Sarker is the maternal uncle of the victim. He deposed that the victim was married to Abhijit. Cash of Rs.10,000/-, one gold chain and other articles were given during marriage. The victim committed suicide by throwing herself on the railway track at Fulia within two years of her marriage. The appellants used to create disturbances for which the victim committed suicide. After returning home from work, he heard that the victim had died. The victim went to her matrimonial home with her 14-day old baby but the appellants did not accept her and she returned and died at night. The accused persons had misbehaved with her and used to tell her to bring money from her mother.
In cross-examination, he stated Abhijit had separated himself from his family and used to stay at Kalyani Ghoshpara with the victim till her death. Abhijit was a hawker and used to go out early in the morning and return at night. He went to the matrimonial home of the victim once after marriage. He was treated well. The couple used to visit their house. He could not give reference with regard to the date and time when the accused persons demanded money. 6
P.W.3, Mala Sarker is the wife of P.W.2. She deposed the victim had died two years after marriage. Gold ornaments were given at the time of marriage. She went to her matrimonial home with her 14-day old child but the appellant refused to accept her and abused her. She committed suicide by throwing herself on the railway track. After the sadh ceremony at the house of the accused persons, Shipra came to her mother's house and gave birth to the child. She was assaulted and refused food on demand of money.
In cross-examination, she stated that the couple used to reside separately at Kalyani Ghoshpara after marriage. P.W.1, mother of the victim works as a cook and resides at Kolkata. She never visited the matrimonial home of Shipra and the couple came to their house on rare occasions.
P.W.6, Smt. Niva Sarkar is the grand mother of the victim. She deposed after the death of her father, Shipra used to stay with her during her childhood. Shipra was married to Abhijit of Santipur. Cash and ornaments were given at the time of marriage. Father-in-law and mother-in-law of the victim Shipra used to create disturbance. She did not know the reason of such disturbance and assault. Subsequently, she stated that it was for demand of money and other articles. She committed suicide by throwing herself on the railway track. The female child is living with the appellants.
In cross-examination, she stated that she was not invited on the occasion of sadh ceremony of Shipra. After the marriage, Abhijit and his mother visited her house twice. Shipra was not residing in the house at previous night prior to her death.
P.W.11, Aurobindo Pramanik is the scribe of the First Information Report. He proved the written complaint. He was present at the time when the body of the 7 victim was sent for inquest. He proved his signature on the inquest report. He was a member of Natun Fulia Gram Panchayat.
P.W.5, Netai Basak, is a relation of P.W.1. He, however, was declared hostile and was cross-examined.
Similarly, P.W.4, Niranjan Biswas and P.W.7, Rekha Biswas, neighbours of the appellants were also declared hostile and cross-examined with regard to their previous statement to the police.
P.W.9, S. I., Ranjit Kumar Ghosh was then posted as A.S.I. of Police at Santipur Police Station at the time of occurrence. On 18.2.2002 he received the written complaint from P.W.1 and drew up the formal First Information Report, Ext.2.
P.W.10, Dr. Dilip Kumar Biswas is the post mortem Doctor who held post mortem examination over the dead body of the victim. He proved the post mortem report. Cause of death was kept pending availability of viscera report. He noted extensive injuries on the body of the victim. He found that the head of the deceased was completely separated from the rest of her body at the level of the neck. He found lacerated injury at both ends of the injured parts. On dissection, he found cervical vertebrae of 3rd, 4th, 5th were lost, membrane of the scalp was congested, large haematoma in the occipital region and spinal chord was injured completely, larynx and trachea were injured completely.
In cross-examination, he stated that separation of the head from the rest of the body may be caused due to the fact she was run over by train from the neck. He deposed that the death of the victim was ante-mortem in nature.
P.W.12 & 13 are the investigating officers in the instant case. P.W.13 submitted the charge sheet.
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P.W.1 to 3 & 6 are the most vital witnesses in the instant case. However, analysis of their evidence particularly that of P.W.1 shows that she has given a clear go-bye to the prosecution case as reflected in the first information report. It was alleged in the FIR that the victim and her aunt along with her 14-day old daughter went to the house of the appellant but was turned away. Over this issue the victim lodged complaint with the police on 16.01.2002. After about a month i.e. 18.02.2002 around 5 A.M. she committed suicide by jumping in front of a moving train.
In court, P.W.1 not only deviated from the aforesaid version but also prevaricated with regard to the place where the victim went with her 14-day old daughter. Initially she deposed that she went to the residence of the appellant when she was assaulted by her mother-in-law and turned away. Thereafter she contradicted herself and stated that the victim went to the tea stall of the appellant situated at the railway platform. Allegation that mother-in-law of the victim assaulted her is stated for the first time in court. In her deposition, P.W.1 is completely silent with regard to the aunt who had accompanied her to her matrimonial home as per the first information report. Furthermore, P.W. 1 did not speak about the complaint lodged by her daughter on 16.01.2002 at the police station with regard to the aforesaid incident as claimed in the FIR. Other prosecution witnesses are also vague and evasive with regard to the aforesaid incident. P.W.2, maternal uncle of the victim claimed that the victim went with her child to her matrimonial home but upon being turned away she returned and died at night. She died that night itself. Such version is in complete contrast to the prosecution case reflected in the first information report that the incident of turning away the victim by the appellants took place on 16.01.2002 whereas the victim committed suicide on a month later i.e. 18.02.2002. P.W.3 is also silent 9 with regard to the date on which the victim had gone to the matrimonial home with her child and had been turned away. P.W.6 her grandmother did not speak of the aforesaid incident at all. Prosecution witnesses did not disclose the date on which the victim along with her child had gone to the residence of the appellants and had been turned away. The reasons for such non-disclosure is not far to seek. As per first information report the said incident occurred on 16.01.2002 and the victim committed suicide on 18.02.2002, that is, a month later. In court, the prosecution witnesses sought to gloss over such lapse of time by remaining vague and evasive with regard to the date and she went to her matrimonial home. Even the incident on 16.01.2002 as referred to in the FIR is not free from doubt. It is alleged in the FIR that the victim lodged a complaint about the incident at the police station on 16.01.2002. P.W. 18 (I.O.) contradicted such version and stated there is no diary to that effect in the police station. The aunt who allegedly accompanied the victim to her matrimonial home has not been examined. It has also come out from the cross-examination of P.W.2 & 3 that the appellant and the victim was residing separately from her in-laws. If that is believed to be true it is difficult to comprehend where the victim went with her child. Was it to the residence at Kalyani Ghoshpara where she was residing separately with her husband? Or was it to the joint household of the appellants. P.W. 1 claimed she went to the tea stall of the appellants at the railway station. Under such circumstances I am of the view that prosecution has not been able to prove beyond doubt the date and the circumstances in which the victim and her child were driven out by the appellants. Under such circumstances, it would be unsafe to come to a conclusion that the victim committed suicide by jumping in front of a moving train on 18.02.2002 due to the fact that she had been driven out of her matrimonial home along with her child.
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It has been argued that the prosecution witnesses, namely, P.W.1 to 3 & 6 have stated that the victim during her lifetime was subjected to torture over demands of money. Such evidence, however, does not inspire confidence. There is no reflection in the first information report that dowries were paid at the time of marriage. Prosecution witnesses sought to create such evidence as for the first time in the course of their deposition in court. Even the torture with regard to the demands of further money are devoid of material particulars as to date as well as nature of demand. Vague and laconic statements of torture on the victim cannot, in my estimation, be proof of the ingredients of the offence punishable under Section 498A of the IPC in the facts and circumstances of the instant case. On the other hand, evidence has come on record that the family members of the victim as well as the appellants were on visiting terms. P.W.1 & 2 admitted that they went to the matrimonial home of the victim. P.W.2 even admitted that he was treated well at the matrimonial home of the victim. Evidence has also come on record that the couple had come to the residence of P.W.1 and had stayed for the night on one or two occasions. Sadh ceremony prior to the birth of child was organized at the matrimonial home of the victim. Evidence of P.W.1 with regard to such fact is contradictory. While in one part of her deposition she admitted that the appellants had organized the sadh ceremony, soon thereafter she retracted and stated no sadh was held and victim was assaulted on that day. Her allegation of assault on the date of sadh is an embellishment which is not reflected in the first information report nor corroborated by any other prosecution witnesses. Hence, I am of the opinion that in the facts and circumstances of the case it cannot be said that the prosecution has established that the victim was subjected to cruelty on demands of money or otherwise.
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It has been argued by the prosecution that in view of the statutory presumptions under sections 113A/113B of the Evidence Act, the prosecution case is well established. I am not unconscious of the applicability of the aforesaid statutory presumptions to cases involving offences under Section 304B and under Section 306 of the Indian Penal Code. However, for invocation of the said statutory presumptions it is incumbent on the prosecution to discharge the initial burden that the victim had been subjected to torture for or in connection with dowry soon before her death. None of the prosecution witnesses have particularized the date as well as the nature of demand of dowry or the torture meted out to the victim for non-fulfilment of such demand in the course of their depositions. Refusal on the part of the appellants to permit the victim and her child to stay at her matrimonial home as per FIR occurred more than a month before her unnatural death. Oral depositions of witnesses with regard to such incident is not only inconsistent with the first information report, but also contradictory to one another and non-specific with regard to the date of the incident. Hence, there is a snap in the live link between the alleged incident and suicide of the victim. On the contrary, prosecution has not explained why the victim was not at the residence of P.W. 6 the previous night prior to her suicide. Hence, I am of the opinion the prosecution has failed to establish the conditions precedent necessary to attract statutory presumptions under Section 113A/113B of the Indian Evidence Act in the facts of the case.
In the light of the aforesaid discussion, I am inclined to acquit the appellant of the charges levelled against them.
Conviction and sentence imposed on the appellants are set aside. The appeal being CRA 394 of 2015 is allowed.
12Appellant No.1 shall be forthwith released from custody upon executing a bond to the satisfaction of learned ACJM, Ranaghat which shall remain in force for a period of six months in terms of section 437A Cr.P.C. if he is not wanted in any other cases.
Bail bonds of appellants of appellant no.3 shall be discharged after six months in terms of section 437A Cr.P.C.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.)