Calcutta High Court (Appellete Side)
Haren Mondal vs The State Of West Bengal on 20 November, 2013
Author: Tapen Sen
Bench: Tapen Sen, Arijit Banerjee
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Form No. J(2)
In the High Court at Calcutta
(Criminal Appellate Jurisdiction)
Appellate Side
CRA 24 of 2006
Haren Mondal
Vs.
The State of West Bengal
CORAM : The Hon'ble Mr. Justice Tapen Sen
&
The Hon'ble Mr. Justice Arijit Banerjee
For the Appellant : Mr. Anjan Bhattacharya
Mr. Saswata Gopal Mukherjee
(Amicus Curiae)
For the State : Mr. Madhusudan Sur
Heard on : 06.11.2013, 07.11.2013 & 08.11.2013.
Judgment delivered on : 20th November, 2013
Tapen Sen, J.: This appeal is directed against the judgment and order
dated 12.09.2005 passed by the learned Sessions Judge, Malda in Sessions Case
No. 218/2002 (Sessions Trial No.17 of 2003) whereby and whereunder the
appellant was found guilty for offences under Section 498(A)/302 of the Indian
Panel Code and was sentenced to suffer life imprisonment with fine of Rs.2,000/-
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and in default, to suffer simple imprisonment for 6 (six) more months for the
offence under Section 302 of the Indian Panel Code. He was also sentenced to
undergo rigorous imprisonment for 3 (three) years with a fine of Rs.1,000/- and
in default, to suffer simple imprisonment for 2 (two) more months for the offence
punishable under Section 498(A) of the Indian Panel Code. Both the sentences
were directed to run concurrently.
Upon a perusal of the written report and the FIR, it is evident that
Kaliachak P.S. Case No.107 dated 27.03.2002 under Sections 498(A)/302 was
initiated on the basis of a written report of one Anjali Mondal, mother of the
deceased Dhrita Mondal (Mousumi) against the appellant Haren Mondal. In the
written report she alleged that her daughter aged about 20 (twenty) years was
married to Haren Mondal on 04.09.2001 and at the time of marriage, she had
paid Rs.50,000/- for purchase of a motorcycle and a television set. She had also
given 2.5 'bharies' of gold, a cot etc. as dowry. She alleged that after marriage,
her daughter resided in the house of her husband but after about 2 (two) months
from the marriage, her son-in-law started beating her daughter on lame excuses.
This was informed by the daughter to her mother. Subsequently, the
complainant came to learn from different sources that the character of her son-
in-law Haren Mondal (appellant) was not good and in the past, he had a history
of seducing another girl and then torturing her.
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It was further alleged that on 27.3.2002, at 5 P.M., one Atul Mandal of
Village Fatepur came and told her and her son that their Jamai (appellant) had
beaten her daughter to such an extent that she was "half dead". Subsequently,
one Ranjit Mandal of their village informed her that her daughter Dhrita was
lying dead and in a burnt condition in the house of her husband. Hearing such
news she and her son Achintya Mandal and other villagers went to the house and
found the daughter lying dead in a burnt condition and also noticed that the
appellant had fled away from the house. According to the complainant the
appellant had killed her daughter after setting her on fire.
On receiving the petition of complaint, the Kaliachak Police Station
registered the aforesaid case and took up investigation. On completion of the
investigation, the police submitted a charge sheet under Sections 498(A)/302 of
the Indian Penal Code against the appellant. Thereafter the learned SDJM,
Malda committed the case to the Court of Sessions whereafter charges were
framed, explained to the appellant to which he pleaded not guilty and claimed to
be tried. Thereafter trial proceeded and subsequently the impugned judgement
was passed.
We have given our anxious consideration to the facts and circumstances
involved in this case. Upon a perusal of the post mortem report we notice that
the following injuries were found :-
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1.Lacerated wound (ante mortem) - 1" X ¼" - muscle deep at left cheek.
2. Lacerated wound (ante mortem) - ¾" X ½" - skin deep on the anterior upper chest.
3. Haematoma - 2" X 1" on the anterior upper chest wall.
4. Second to fourth degree burns all over the body, which was blackened with superficial layer of skin lost at places. No blisters were found but there were signs of burning and singing of scalp hairs, eye brows, eye lashes, auxiliary and pubic hairs were burnt and they were post mortem in nature. The injuries further recorded that there was subcutaneous echymosis on the anterior portion of the neck, which was ante mortem in nature. The neck muscle was congested. Tracheal rings was crushed. The hyoid bone was fractured.
The doctor found the pharynx was found to be congested and so was the larynx and the trachea. There was however no soot but both the lungs were highly congested. The doctor further found the oesophagus, intestines, brain, spleen and Kidney congested. Death, according to the doctor, was due to the effect of asphyxia which was homicidal in nature.
Before proceeding further in this case we would like to point out that so far as Section 498(A) is concerned, there are no materials so that Section 498(A) can be attracted. We, therefore, have to deal with a case under Section 302 with circumstantial evidence.
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P.W.1, Anjali Mandal, is the mother of the deceased Dhrita Mondal. In her evidence she had stated that her daughter died three years ago and that she had been married with the appellant Haran Mondal 7/8 months prior to her death. She had further stated that the appellant assaulted the deceased with a lathi severely and out of such assault she died. However, from the evidence of the doctor, the lacerated wounds which could have been caused by such lathi blows were said to be not the cause of death.
This witness has further stated that after the assault, her daughter was set on fire. The evidence of the doctor also says that the burn injury was 'post mortem' in nature. In other words, from the doctor's evidence, the burn injury was caused after the death and the fact that the hyoid bone was fractured, certainly points towards strangulation.
Coupled with this, we cannot also ignore the other portions of the evidence of this witness who said that after the marriage, the appellant used to resort to physical as well as mental torture upon Dhrita and that this was reported to her by the deceased with tears in her eyes whenever she visited her house.
P.W.2 is one Biren Mandal who is a co-villager and who stated in his examination-in-chief that he did not know as to how and why the death of the deceased occurred. This witness was declared hostile. 6
P.W.3 is one Kulesh Mandal who is also a co-villager and in his examination-in-chief he stated that he did not know anything about the incident. He was also declared hostile.
P.W.4 is one Achinta Mandal, the younger brother of the deceased. He has stated that Atul Mandal, a co-villager had visited their house and had informed them that the accused/appellant had severely assaulted the deceased with lathi, fists and blows. On hearing such an information they were preparing to go to the matrimonial home of the deceased when, one Ranjit Mandal, came to their house and informed them that the appellant had murdered the deceased and had set her on fire. He also told them that thereafter the appellant had fled away. They went to the house of the deceased with one Amal Mandal, Bisu Mandal and Paresh Mandal and found Dhrita lying dead on the floor with burn injuries. They also found the television set, the cot etc. burnt. Thereafter one Adhir Mandal wrote out the petition of complaint according to their instructions and the same was filed in the Police Station. Subsequently a Magistrate visited the spot and held inquest over the dead body in their presence. The police also held an inquest over the dead body in their presence. That inquest report dated 27.03.2002 was marked Exhibit '1' and the other inquest report dated 28.03.2002 was marked Exhibit '2'. P.W.4 has further stated that at the time of the incident, the appellant and his sister were the only persons residing in the house and no one else were staying there. He also stated that one month after the marriage, the appellant resorted to physical as well as mental torture upon 7 the deceased and that he used to rebuke her in filthy languages. These facts used to be reported with tears by the deceased whenever she visited their house. He also stated that the family of the complainant had gifted a television set, a cot and also a sum of Rs.50,000/- to the appellant for purchasing a motorcycle at the time of the marriage. He also referred to the appellant having an illicit relationship with a lady from Gazole whom he also drove away after assaulting her from her residence. We do not find any reason to doubt the veracity of his statements.
P.W.5 is one Amal Mandal who was named by P.W.4 as one of the persons who had accompanied the complainant and her son to the place of occurrence. He is a co-villager who has also referred to torture being meted out to the deceased after the marriage. He has repeated what has been stated by P.W.4.
P.W.6 is Amitabha Sengupta who was the Magistrate who held the inquest over the dead body of the deceased on 27.03.2002.
P.W.7 is Atul Mondal who is also said to have accompanied the complainant and her son to the Police Station. He was declared hostile after he stated in his examination-in-chief that he did not know anything about the incident and that he also did not know how the deceased had died. 8
P.W.8 is Sadeque Sk. who stated that he did not know the accused person and that he knew nothing about the incident. He was declared hostile.
P.W.9 is one Ranjit Mondal who is also said to have accompanied the complainant and her son to the place of occurrence. This witness went to the house of the appellant where he found the dead body of the deceased with burn injuries and he did not find Haren Mondal at his house. The absence of the appellant from his house at such a time goes definitely against the conduct of a husband.
P.W.10 Paresh Mondal who was named by P.W.4 as a person who also went with the complainant and her son to the place of occurrence, stated the same thing which P.W.4 and P.W.9 had stated.
P.W.11 Ajoy Kumar Das is the doctor who conducted the post mortem examination. He found the following injuries on the body of the deceased:-
1. Lacerated wound (ante mortem) - 1" X ¼" - muscle deep at left cheek.
2. Lacerated wound (ante mortem) - ¾" X ½" - skin deep on the anterior upper chest.
3. Haematoma - 2" X 1" on the anterior upper chest wall.
4. 2nd to 4th degree burns all over the body. Body blackened and superficial layer of skin lost at places.9
No blister found. Burning and singing of scalp hairs, eye brows, eye lashes, auxiliary hairs and pubic hairs. Burns were post mortem in nature.
Subcutaneous ecchymosis at anterio lateral aspect of neck -ante-mortem in nature.
Neck muscles-congested.
Tracheal rings- crushed. Cornua of hyoid bone-fractured. The hyoid bone was fractured.
P.W. 12 is Adhir Roy who is said to be the scribe of the written report which was written at the instructions of the complainant.
P.W.13 is Bishu Mandal. He also accompanied the complainant and her son to the place of occurrence where they found the dead body of the deceased and the furniture of the house including television set, cot etc. in a burnt condition.
P.W.14 is one Thakur Das Mondal who was declared hostile after he stated that he did not know as to how and why Dhrita died.
P.W.15 is one Nuhur Islam who was known to the appellant and who identified him.
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P.W.16 is one Dilip Bhattacharya, Sub-Inspector of Police who was posted at Kaliachak P.S. on 28.03.2002.
P.W.17 is constable Fekulal Singha who was also posted in the Kaliachak P.S. as a constable on 27.03.2002. He produced the dead body of the deceased Dhrita Mondal at the Malda Sadar Hospital Morgue. He identified the dead body of Dhrita before the doctor at the time of post mortem examination. He put the signature on the seizure lists dated 28.03.2002 and the same has been marked as Exhibit - '7'.
P.W.18 is Enamul Hoque, who was posted at Kaliachak P.S. on 27.03.2002 as a Sub-Inspector. He received the petition of complaint and he initiated the investigation and after completion thereof, he submitted charge sheet under Section 498(A)/302 of the Indian Penal Code.
Taking into consideration the aforementioned facts and circumstances, the finding of the learned Trial Judge to the effect that the case and/or the death of Dhriti/Mousumi was homicidal in nature and not suicidal cannot be said to be a wrong finding. The next finding as to who committed the murder has been dealt with in the impugned judgement. From the evidences of P.W.1, 4, 5, 10 and 13 as well as from the evidence of others it is evident that when they went to the house of the accused, he was not present and no explanation is coming forth from the defence as to how the accused person was not present just after the incident and that too, when a major portion of his house has been burnt and his wife had died. His not being present and/or having fled away is a chain in the 11 circumstances which leads this Court to the inescapable conclusion of drawing the provisions of Section 106 and 114 of the Evidence Act against the appellant regarding a presumption that he committed the crime of firstly murdering his wife and then, setting her on fire. The burden of explaining his absence and the fracture of the hyoid bone was upon him but he did not do so. The conduct of the appellant who fled away from the incident and the manner in which he answered the questions even at the stage of Section 313 of the Code of Criminal Procedure shows a nonchalant attitude on his part attempting to evade the questions in a very clever manner. These are circumstances which lead and compel us to come to the conclusion that it was he who committed the murder of the deceased Dhrita and then ran away from the place after setting an already dead person on fire. He strangulated her as a result of which the hyoid bone was fractured. After strangulating and killing her, he set her on fire and then he ran away. These circumstances cannot be ignored and they compel us to come to the conclusion that it was he who committed the murder.
A similar case fell for consideration before the Hon'ble Madras High Court in the case of Shunmugasundaram vs. the State by Deputy Superintendent of Police, Erode Town reported in 1997 Cr.L.J 499. In that case their Lordships have observed that the conduct of the appellant immediately after the occurrence should also be considered for purposes of drawing an adverse inference for the provisions of Section 106 of the Evidence Act. In Para 19 (infra) their Lordships have held as follows ---
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"if some occurrence happens inside the residential portion of the appellant, wherein he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. The only other person who can speak about the occurrence will be the deceased and now that she is dead, if at all, the appellant and the appellant alone can offer an explanation. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this section cannot be used, so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the present case, there is satisfactory evidence, which fastens or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time. So, in the absence of any other explanation, the only possible inference is that the appellant had participated in the act. If he claims contrary, under Section 106 of the Evidence Act, the burden of proving that fact is upon him, since that is within his special knowledge. In Shambho Nath V. State of Ajmer, AIR 1956 SC 404: (1956 Cri LJ 794), the scope and object of Section 106 of the Evidence Act came to be considered by the Supreme Court."
The Madras High Court had also observed that even assuming the case to be a case of suicide, would it not have been the conduct of the appellant therein to have been present at the scene of occurrence and attempted to set the law in motion? Considering and taking into the overall scenario, their Lordships held that the appellant therein had been correctly found guilty.
In the case at hand, we also have taken into consideration the totality of the situation and we have accordingly decided to dismiss the appeal. 13
Under the circumstances, we do not find any illegality or irregularity with the impugned judgement. We, accordingly, affirm the same and we dismiss the Appeal. The Appeal stands dismissed.
Urgent photostat certified copy of this order, if applied for, be given expeditiously after complying with all necessary legal formalities.
(Tapen Sen, J.) I agree.
(Arijit Banerjee, J.) A.J. A.F.R / N.A.F.R