Calcutta High Court (Appellete Side)
Sri Banshi Sardar & Ors vs The State Of West Bengal on 3 April, 2013
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
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IN THE HIGH COURT AT CALCUTTA
Appellate Criminal Jurisdiction
Present :
The Hon'ble Justice:- Patherya
And
The Hon'ble Justice:- Asim Kumar Ray
C. R.A. 290 of 2003
Sri Banshi Sardar & Ors.
Vs.
The State of West Bengal
For the appellant(s) :-Mr. M. Bakshi
For the State : Mr. M. Singh, P.P.
Mrs. K. Chatterjee
Heard on : 22.02.2013, 4.03.2013,
5.3.2013 & 6.3.2013.
Judgment on : 03.04.2013
Asim Kumar Ray, J :
This appeal is directed against the judgment, order of conviction dated 26.5.2003 and sentence dated 27.5.2003 passed in Sessions Trial Case No. 12 of 2 2002 arising out of Sessions Case No. 132 of 2000 by the Additional Sessions Judge, Fast Track Court - 1 Purulia, whereby the appellants were sentenced to suffer R.I. for life and pay a fine of Rs. 1000 each; in default to suffer S.I for one month each for the offence punishable under Sections 302/34 IPC.
The factual back ground leading to the presentation of the appeal in a nutshell is that the victim girl, daughter of Jaba Majhi, de facto complainant was given in marriage to appellant Banshi Sardar son of appellants Lalu Sardar and Nanibala Sardar. The victim girl started residing at her matrimonial home after her marriage. She was subjected to both physical and mental torture by the appellants during her stay at her matrimonial home.
On 6.10.1995, the de facto complainant, mother of the victim went to the matrimonial home of her daughter and stayed there. On the next day, i.e., 7.10.1995 she was served with Garam Bhat by the mother in law of the deceased while the victim was served with Panta Bhat. The de facto complainant was sleeping in the courtyard of the house after taking Garam Bhat when she heard a loud noise of her daughter. Being attracted by that noise, she rushed to her daughter's room and found the appellants fleeing away from the house. She found her daughter writhing in pain. She told her mother/de facto complainant that she had been given poison. The de facto complainant with the help of the neighbouring people took her daughter to Manbazar hospital but on the way to hospital her daughter expired. She spent the night in the house of one of her relative at Pairachali and on the next morning she left for Natun gram to inform 3 her husband. It has been alleged by the de facto complainant that the appellants administered poison to her daughter leading to her daughter's death.
On receipt of the FIR Puncha P.S. Case No. 41 of 1995 dated 8.10.1995 under Sections 498A/302/34 IPC was started against all the three accused persons/appellants. The case was investigated and charge sheet under the aforesaid Sections of IPC was submitted.
The case was committed to the Court of Sessions and the Court of Sessions transferred the case to the court below for disposal. On receipt of the case record, the learned court below framed charges under Sections 498A/302/34 IPC against the accused persons/appellants which was read over and explained to each of them to which they pleaded not guilty and claimed to be tried.
To bring home the charge, prosecution examined in all seven witnesses. Besides the oral evidence of the witnesses, the prosecution exhibited a number of documents, such as FIR/Exhibit 1, post mortem report/Exhibit 2, opinion of medical officer as to the cause of death of the victim/Exhibit 3, report of medical analysis/Exhibit 4, formal FIR/Exhibit 5, copy of Inquest Report/Exhibit 6 and Sketch map of the place of occurrence with index/Exhibit 7 and 7/1. No one was examined from the side of the defence.
On appreciation of the evidence on record, the learned Additional Sessions Judge, Fast Track Court -1, Purulia arrived at a finding that the offence punishable under Section 498A IPC against the appellants had not been proved beyond the shadow of reasonable doubt but the case against the accused 4 persons/appellants under Sections 302/34 IPC had been proved. So, the judgement, order of conviction and sentence impugned was passed. Being aggrieved by the said judgment, order of conviction and sentence, this appeal has been preferred by the appellants.
Counsel appearing on behalf of the appellants has contended that the story stated in the FIR differs from the evidence of the FIR maker. It has not been corroborated. It is a case of suicide. There is no evidence on record to show that accused persons/appellants had procured poison. It has come through the evidence that endosulfan was found in the viscera of the victim. Endosulfan is a poison having bitter test and if it was mixed with the rice which was served to the victim by her mother in law/appellant Nanibala Sardar, the victim could not have consumed it. It is against general human conduct to take the entire bowl of rice with bitter test. There is no motive behind the murder. It is highly improbable that the rice mixed with poison would be served in presence of her mother. The prosecution case is full of doubt. One Juran Sardar was the first informant but he was not examined by the prosecution. Neighbouring people who accompanied the de facto complainant when the victim was being taken to Manbazar Hospital, was not examined by the prosecution. The judgment, order of conviction and sentence impugned is erroneous. It be interfered with and set aside. In support of the argument, the decisions reported in (2008) 5 SCC 697 and (1984) 4 SCC 116 have been cited.
Counsel for the State has contended that the chain of circumstances is clear. The de facto complainant/ mother of the victim arrived at the matrimonial 5 house of her daughter on 6.10.1995. On the next date, i.e., on 7.10.1995, the mother was served with Garam Bhat but the victim was served with Panta Bhat. All the appellants were present in the house on that date. The victim started writhing in pain after taking Panta Bhat. Mother called the neighbouring people. Appellants fled away from the house. On the way to the hospital, the victim died. The chain of circumstances is complete pointing to the guilt of the appellants. The appellant Lalu Sardar, father-in-law of the victim is a cultivator. So, possession of insecticide by that appellant must be presumed to be true. The decision reported in (1992) 3 SCC 43 has been relied on by the Counsel appearing for the State.
We have taken stock of the argument advanced by the Counsels appearing on behalf of the parties. We have given our anxious consideration to the argument. Gone through the evidence on record. The case was initiated on the basis of a written complaint submitted by the mother of the victim. The written complaint/FIR has been exhibited (Exhibit 1). The de facto complainant/mother of the victim deposed regarding the marriage of her daughter with appellant Banshi Sardar. She has stated that her daughter was tortured by the appellants of which her daughter used to narrate during her visit to her father's place. She stated that she visited the matrimonial home of her daughter prior to her daughter's death. Mother/PW1 was served with Garam Bhat in the matrimonial home of the daughter while the daughter was given Panta Bhat by the mother in law. After consuming Panta Bhat her daughter started writhing in pain and her mouth started foaming. She with the help of neighbouring people arranged to 6 shift her daughter to Manbazar hospital but on the way to the hospital her daughter expired. She returned to Natun gram to inform her husband and thereafter she lodged FIR.
Prosecution witness no. 2, Balai Majhi is the scribe who wrote the FIR. He stated that the victim used to tell him about the torture upon her by the appellants whenever she used to visit her father's house. He is a resident of Beliatore.
Prosecution witness no. 3 is Bhakta Majhi, father of the victim. He has stated in his evidence that his daughter would tell him and his wife about the torture meted out to her during her stay at her matrimonial house by her husband and in laws. He has also stated that he came to know from his wife that the appellants administered poison to her daughter.
Prosecution witness no. 4 is Umar Ali. He has stated that he heard from Bhakta Majhi/PW -3 that the victim girl was tortured by the inmates of her matrimonial home. He has also stated that he heard from Bhakta that the victim girl was poisoned to death by her in laws.
Dhiru Sardar is the prosecution witness no. 5. He has stated that he heard about the incident of the victim girl's death from her mother. On hearing the news of death of the victim, he went to Pairachali hospital and saw her dead body. He found her mouth and nose foaming.
Dr. Dipak Kumar Basak is the prosecution witness no. 6. He conducted post mortem examination of the dead body of the victim. He has stated that on 9.10.1995 he held post mortem examination and on dissection he found rice and 7 yellowish colour material in the stomach of the deceased. He reserved his final opinion as to the cause of death of the victim till the receipt of the report of Chemical analysis. He submitted his final report on 28.4.1997 on the basis of Chemical analysis. The final report has been marked as Ext. 3 and the report of Chemical analysis has been marked as Ext. 4 which shows endosulfan insecticide was detected in the viscera of the deceased.
Prosecution witness no. 7 is the I.O. He has stated that he conducted the investigation and on conclusion of the investigation he submitted the charge sheet against the appellants.
This appeal has been preferred challenging the judgment, conviction and sentence passed against all the three appellants under Sections 302/34 IPC. So, we shall confine ourselves to the prosecution case with regard to murder of the victim. The evidence of the FIR maker is vital. It is vital because the FIR maker/mother was present at the matrimonial home of the victim on the date of incident, i.e., 7.10.1995. There is specific evidence from the FIR maker /mother of the victim that she was served with Garam Bhat and her daughter the victim was served with Panta Bhat by the appellant no. 2/mother in law on 7.10.1995. The victim after consuming Panta Bhat started writhing in pain and became restless. She stated to her mother that she was administered poison. The above piece of evidence of the mother was subjected to cross-examination from the side of the defence and on cross-examination it has not been shaken rather the examination in chief and cross-examination lend support to each other. 8
It is the case of the prosecution that the death of the victim was due to the administration of the poison. The Doctor/Autopsy surgeon stated in his evidence that on dissection of the dead body of the victim, he found rice and yellowish colour material in the stomach. On receipt of the report of Chemical analysis Ext. 4, he gave his final report (Ext. 3).
If we peruse Ext. 4 and Ext. 3 together, then it will be found that endosulfan was detected in the viscera of the victim girl and the Doctor opined in his final report that endosulfan is an insecticide, poisonous to human being which may cause death. Endosulfan poisoning caused death in the instant case. The Doctor in his evidence has stated also that "in my opinion the cause of death of the deceased was endosulfan poison."
It is nobody's case that after taking Panta Bhat the victim took any other substance. The victim developed signs of restlessness and her mouth started foaming within a short span of time after consuming Panta Bhat which was served by her mother in law in presence of her mother, i.e., PW -1. Mother has stated in her evidence that she saw the mother in law of the victim serve Panta Bhat to the victim. The victim was being removed for treatment to Manbazar hospital by her mother with the help of others but on the way to hospital she expired.
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The evidence of the mother inspires confidence as the evidence of the Doctor and the Chemical analysis report lend support to it. There is no reason to impeach the credit of the testimony of the mother; it is clear and unambiguous. It remains uncontroverted after lengthy cross-examination. There is no reason to withhold reliance of the evidence of the mother. The evidence on record does not give any indication regarding the role of the father and husband to culminate the murder of the victim by administering poison. So, they stand on a different footing than the mother-in-law.
Both the citation referred to by the Counsel for the appellant are based on different facts and situation, and the same are distinguishable from the case on hand. We find it judicious to make a note of the citation relied on by counsel for the State. If motive does not surface and on failure to show motive, the chain/link in the circumstance will not be broken.
In the present case, we have noticed that the -
(1) mother came to the victim's matrimonial home on 6.10.1995; (2) on the next day, i.e., 7.10.1995 mother was given Garam Bhat while the victim was given Panta Bhat by the mother in law Nanibala Sardar;
(3) taking Panta Bhat, the victim started writhing in pain and her mouth started foaming;
(4) mother of the victim called the para people for shifting the victim to Manbazar hospital;10
(5) appellants did not help to shift the victim to the hospital to save her life;
(6) on the way to hospital, the victim collapsed/expired; (7) endosulfan was detected in the viscera of the victim; (8) the death of the victim in the opinion of the Doctor was due to endosulfan poisoning.
The chain of circumstances stands completed and points towards the mother in law Nanibala Sardar as the perpetrator of the crime, i.e., homicidal death of the victim, aged about 15 years old.
In view of the forgoing discussions, we find that the judgment, order of conviction and sentence impugned may be modified to the extent that the judgment, order of conviction and sentence passed against the mother in law Nanibala Sardar be hereby confirmed, and the same passed against the other two appellants, namely, Lalu Sardar and Banshi Sardar is hereby set aside.
Appellants No. 1 & 3, Banshi Sardar and Lalu Sarder respectively be released forthwith provided they are not required in any other case.
Urgent photostat certified copy of this order be given to the parties, if applied for.
I agree.
( Patherya, J.) (Asim Kumar Ray, J.)
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S.D.