Calcutta High Court (Appellete Side)
Kiran Adak & Ors vs The State Of West Bengal on 30 September, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
APPELLATE SIDE
Before:-
THE HON'BLE JUSTICE RAJASEKHAR MANTHA
C.R.A. 806 of 2008
KIRAN ADAK & ORS.
VERSUS
THE STATE OF WEST BENGAL
For the Appellant : Mr. Soumik Pramanik, Advocate
Pradyut Kr. Das, Advocate
For the State : Mr. Bidyut Kumar Roy, Advocate
Ms. Rita Dutta, Advocate
Hearing Concluded On : 27.09.2019
Judgment On : 30.09.2019
Rajasekhar Mantha, J.:-
1.The instant appeal is directed against a judgment and order of conviction dated 19th December, 2008 passed by the Additional District & Sessions Judge, Fast Track Court, Hooghly, in Sessions Trial Case No. 22 of 2007 arising out of Sessions Case NO. 126 of 2007 convicting the appellants under Section 498A & 306 of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act. 2
2. The prosecution case in short is that one Tushi Adak (nee Polley), student of Class-X, eloped from her house and got married in a local temple, to the appellant No. 1, aged about 22yrs, on 29th December, 2005 without the knowledge of the respective families. 15 days after marriage, Tushi Adak was found dead at nearby railway track, between Janai Road Railway Station and Begumpur Railway Station. The victim and the appellants were both residents of village Panchghara Bazar (Janai), P.S. Chanditala, District- Hooghly.
3. It is alleged in the complaint that 11 days after marriage the victim, came back to her grandfather's house complaining that the appellant No. 1, the husband, and the appellant No. 2, the mother-in-law, demanded money particularly a sum of Rs. 20, 000/- kept in form of a joint fixed deposit account in the names of victim & her father and the same was in the custody of her grandfather, Rabin Das (PW 1). The victim is stated to have been threatened and tortured both physically and mentally, by the appellant No. 2 with the connivance of the appellant No. 1.
4. The mother of the victim had died during the birth of another child, when the victim was around 5 years old. The father of the victim got married thereafter and hence has been living separately, with his new family. The victim was been brought up by her grandmother Kamala Das (PW 6) and grandfather Rabin Das (PW 1). Two persons known to the family of the side of the appellant were stated to be present during the marriage ceremony.
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5. The body of the victim was found without any clothes, as per the depositions of the P.W. 1 and P.W. 7. The non-family witnesses deposed otherwise. There were severe injuries on the face, head, fractured ribs, hands and feet. No serious external injuries were found on the rest of the body. The incident is stated to have occurred around 23:15 hrs. on Thursday, 12th January, 2006. The complaint was received by the police on the 13th of January, 2006 at 10.55 hrs. The incident occurred between railway gate post No. 21/7 to 21/11 between Janai Road Railway Station and Begumpur Railway Station.
6. The complaint was lodged by PW 1 Rabin Das, the grandfather of the victim, and the informant was a railway gang man who alerted the Station Master about the presence of a dead body on the railway track. The complaint was lodged against the appellant No. 2, mother- in-law, and the appellant No. 1, husband and one Barun Adak, the brother-in-law of the deceased. FIR was lodged on 13.01.2006. The charges were framed on 8th August, 2007 against the appellants and one Barun Adak.
7. The prosecution examined about 22 witnesses.
PW 1 - Rabin Das, maternal grandfather of the deceased. PW 2 - Bijoy Kumar, Railway employee.
PW 3 - Biswanath Nandi, 'meso', husband of maternal aunt. PW 4 - Biswajit Das, maternal uncle.
PW 5 - Swapan Dey, husband of another maternal aunt. 4 PW 6 - Kamala Das, maternal grandmother of the deceased and the wife of PW 1.
PW 7 - Mousumi Das, maternal aunt.
PW 8 - Kashinath Adak, father-in-law of the deceased. PW 9 - Ajit Patra, seizure witness, scribe of the seizure list (seized articles- conch shell bangle and vermilion bangle). PW 10 - Kalipada Bag, villager.
PW 11 - ASI Kartik Kundu, seizure witness.
PW 12 - Constable Subhas Chandra Ghosh, seizure witness of the dead body.
PW 13 - Constable Sushil Kumar Dey, seizure witness of the dead body.
PW 14 - ASI Tapas Bhuinya, seizure witness.
PW 15 - Amalesh Paul, Station Master of Janai Road Railway Station.
PW 16 - Bhabataran Dhara, Gram Panchayat Pradhan. PW 17 - Prasanta Ghosh, bother of daughter-in-law of PW 1, seizure witness of another seizure list.
PW 18 - Debashis Nath Chatterjee, Officer-in-Charge, Kamarkundu GRPS who registered the UD case.
PW 19 - Budhhadeb Polley, father of the deceased.
PW 20 - Narendranath Kar, S.I. of police who conducted the inquest along with the Executive Magistratae.
PW 21 - Dr. S. Mukherjee, Medical Officer and Post-mortem doctor.
PW 22 - S.I. Nitai Chandra Ghosh, Investigating Officer.
8. Evidence of PW 1:The marriage of the deceased was held at a nearby temple on the 29th of December, 2005. The father of the appellant No. 1, Kashinath Adak, came to inform PW 1 about such marriage with his younger son Kiran Adak on the night of the marriage. After 11 5 days of such marriage, the victim came back to the house of PW 1 and refused to go back to her in-laws's house. The deceased informed PW 6 and 7 that the appellant No.1, appellant No. 2 and her elder brother-in-law assaulted her. He also deposed that appellant No. 2 demanded money from the victim that was lying in form of a joint fixed deposit account, with the PW 1. The PW 1 is stated to have convinced the deceased to go back to her in-laws with his son-in-law (PW 5) and son-in-law of his brother (P.W. 3) with a sum of Rs.500/- and some of victim's own garments. Upon reaching the house of the appellants, the appellant No. 2 is stated to have demanded the sum of 20, 000/- as dowry else refused to allow the victim into the house and further assaulted the PW 3 with a broomstick and threatened. That day later at about 11:00 pm the appellant No. 1 and his brother and one Gobordhon came to the house of the PW 1 to enquire of the whereabouts of the deceased. PW 1 joined the said persons to search out the deceased. PW 1 later on came to know from one of the three persons that a dead body was found between Begumpur and Janai Road Railway Station.
9. PW 1 went to the place. He stated that the body of the victim was found without clothes and her sari, blouse and shawl were found lying elsewhere. This was contradicted by the Inquest Officer and the other witnesses who removed the body of the victim from the place of occurrence. PW 1 along with PW 5 and one Naru went to Chanditala Police Station and informed the Chanditala P.S. of the incident. The 6 PW 1 along with the police came to the place of occurrence. The examination in inquest repost was conducted by the Kamarkundu GRP and PW 1 witnessed the inquest report. He identified the written complaint that was written by one Ajit Patra (not examined) on the instruction of PW 1 and signed by PW 1.
10. In cross examination PW 1 stated that he was an employee of the Railways. The house of the appellants and PW 1 was separated by only one house. The house of the appellant is owned by one Late Shaila Adak. PW 1 has two sons and two daughters. The mother of the deceased died while giving birth to a child. The deceased was 5 years old then and had a sister. PW 1 admitted to have filed a complaint against the father of the deceased for maintenance of the victim after he left them, and re-married. The victim and the appellant No.1 did not obtain his consent nor did inform him of their marriage. The marriages of his two daughters including the victim's mother were held as per Hindu rites when he gave away customary gifts.
11. The victim is stated to have left the house on the day of marriage on the pretext of going for private tuition. The appellant no. 1 did not inform the appellant of the marriage. The victim was preparing for Class-X Board Examination during the year of marriage. The accused did not demand any money directly from him. They also did not send any letter demanding money to him. PW 1 did not invite the deceased and her husband after being informed the marriage. He 7 admitted that he was interrogated by the police in connection with the case. He was not present on the day when the deceased came to his house after marriage complaining of harassment by the appellants. The deceased is stated to have visited his house at 12 noon and for the second time in the afternoon. PW 1 was not present at either of those times. He came back home at 7:30 pm when he heard from his wife that the accused persons demanded money from the deceased.
12. He did not visit the accused persons after coming to know of the alleged demand for money. He did not meet the deceased also after coming to know of the assault of his son-in-law Swapan Dey. He was not even present when son-in-law took back the deceased to her in- laws house. He has also admitted that he had not told anybody before the deposition in Court that the deceased's dead body was found naked and the clothes found in a separate place. He deposed that the deceased died out of accident and because of torture of the deceased by accused. He deposed that there was no fog in the night in that area.
13. A large number of accidents occurred where the deceased was found. The railway line took a curve at the place where the deceased was found and a large number of accidental deaths had also occurred earlier at the same place. The railway track was used by the villagers as a place of relieve themselves as a majority of houses in the village did not have toilet. The appellant No. 1 was an apprentice at a gold shop in Barabazar. The PW 1 and their family were not happy with 8 the marriage of the deceased with the appellant No. 1. The deceased was very good looking and it was the desire of PW 1's family that she gets married to a well-established boy with a good family background.
14. PW 2 Bijoy Kumar is a Railway employee who found the dead body on the railway track.
15. PW 3 is Biswanath Nandi, husband of the maternal aunt of the deceased. He deposed that the deceased was assaulted by the in-laws for being unable to perform household chores and was being tortured for dowry. The appellants are stated to have demanded that the victim brings the fixed deposit account money, jointly held in her and her father's name, lying with PW 1. The victim is stated to have been assaulted by the appellants. The victim is stated to have come to the house of PW 1 on 11th January, 2006 and informed her grandmother of the torture for demand of dowry by the appellants. He came to know the above from the grandmother of the deceased after such grandmother called him and another son-in-law Swapan Dey.
16. Two sons-in-law, PW 3, PW 5 and PW 4 (the maternal uncle of the deceased) consulted with each other and took the deceased back to her matrimonial house alongwith a sum of Rs.500/- and some of her garments. The father-in-law of the deceased is stated to have told PW 3 and PW 5 to keep the victim in her own house. Appellant No. 2 is stated to have taken the money and had asked for a further sum of of Rs.20, 000/- on the ground that "a marriage cannot be solemnized without money". The appellant No.2 thereafter is stated to have 9 beaten PW 5 with a broomstick and abused him filthily and drove them out of their house.
17. In cross-examination PW 3 stated that he kept track of the status of affairs of the deceased yet he did not know how long the deceased was having a love affair with the appellant No. 1. He could not name the friends of the deceased. He denied that PW 1 instituted any proceeding against the father of the deceased. He asserted that grandmother of the deceased lodged a case against the father of the deceased for recovering money for maintenance of the deceased and her younger sister. He admitted that he was interrogated by the police. He did not invite the deceased and her husband to his house after marriage. He admitted that he had visited the house of the appellants on the 11th of January, 2006. He deposed that he did not inform the local panchayat or police as regards the demand of money. He further stated that he informed the police of the demand for dowry by the appellant No. 2 from the deceased only after her death. He further claims to have informed the police of having consulted with PW 5. He could not recollect having told the police of the assault on PW 5 by the appellant No. 2. He also admitted that he did not inform the police that they had assured the accused persons of fulfilling the dowry demand subsequently. He admitted that there was fog during winter season in the area of the railway line which was used as toilet by most of the persons in the village. There was admittedly a toilet in 10 the house of the PW 1. He further stated that his marriage and other marriage ceremonies were held at in-laws house not at temple.
18. PW 4, Biswajit Das is the maternal uncle of the deceased. He deposed that the marriage of the deceased was solemnized on 13th day of Poush at a temple and after her marriage she resided in the appellants' house. He deposed that the accused persons demanded money from the deceased and threatened to assault her if she fails to bring money from the maternal uncle's house. He stated that on the day before the death of the deceased, the deceased came complaining of the torture and the dowry demand to her grandmother. On the next day he along with PW 3 and 5 took the deceased back to her matrimonial house along with Rs.500/- and some garments, when appellant No. 2 assaulted PW 5 with broom and abused them with filthy languages.
19. The deceases stayed in her matrimonial house and they came back. Next day at about 11:00 pm appellant No. 1, his brother along with Gobordhon and Kelo came to their house and informed that deceased was missing. All of them went to railway gate No. 16 and found the deceased's body lying there. They went to the Chanditala P.S. to lodge an FIR. The police came to the spot. He deposed that the deceased died due to tortured being caused upon her by the appellants.
20. He deposed that on 11.01.2006 they remained half an hour in the house of the appellant, some of the villagers were present thereat but he could not name any of them. He deposed that they did not file any 11 FIR against the incident of assault of PW 5. He further deposed that the deceased have been living at his residence for 10 long years yet he does not know the names of any of her friends. He came to know about the marriage on 29.12.2005 at about 9.00 pm and on that day itself he learnt about their love affair. He deposed that on 11.01.2006 the deceased herself confessed about the torture to him but he did not inquire the reason for such torture.
21. In cross-examination PW 4 deposed that he is illiterate. He was interrogated by the police, Kamarkundu GRP Office on the day after her death. He stated that he specifically mentioned to the police the fact that appellant No. 1, his brother along with Gobordhon and Kelo came to their house on the date of the death of the deceased but he did not mention that those persons took him to the place of occurrence.
22. PW 5, Swapan Dey is the husband of the maternal aunt of the deceased. He stated that on 11th January, 2006 the deceased ran away to her maternal uncle's house and told her grandmother that her husband and mother-in-law are torturing her and that she would not go back to her matrimonial house. He further deposed that she told her grandmother that if she was forced to go back to her in-laws house, she would commit suicide. On the same day in the afternoon he along with PW 3 and the maternal uncle of the deceased Biswajit Das and one Sujata Nandi, maternal aunt of the deceased, went to the 12 house of the appellant. As soon as they reached there, appellant No. 2 abused them in filthy language and assaulted him with a broomstick. That on the 12th of January, 2006, Biswajit Das (PW 4) informed him that the victim died and was found on the railway line. He then came along with Biswanath Nandi and Biswajit Das to the house of PW 1 and they went to Chanditala Police Station and informed of the complaint of the incident.
23. In cross-examination he deposed that he was interrogated by the Kamarkundu GRPS along with PW 3, PW 4 and PW 1. They were all examined separately on the same day by the police. PW 6 Kamala Das was not present at that point of time. His wife's name is Pratima Dey. He deposed that PW 1 had two other full brothers. He had good relations and access to the house of PW 1. He claimed to be as affectionate towards the deceased as her two other maternal uncles and aunts were. He made no enquiries as to the circumstances under which deceased got married nor received any information prior thereto. He came to know of the marriage on the 13th Day of Poush while on a visit to in-laws house. He admitted that he did not visit the matrimonial house of the deceased before 11th January, 2006. He is a carpenter by profession.
24. He stated that a large number of other persons also went along with him, PW 3 and PW 4 to the house of the appellants on the 11th of January, 2006. He remembers some names but does not remember the others. The deceased was in the house of the PW 1 on the 11th of 13 January, 2006. He came to know from the deceased directly that she was being tortured and would commit suicide if she was sent back to the house of the appellant. He took her to reside with her in-laws despite such statement from the deceased. He did not inform any other villagers of the incident. He is stated to have convinced the appellants not to harass the deceased.
25. He also stated that he was hit with a broomstick by the appellant No.2 but did not take any steps towards lodging a written complaint to the Police. He did not notice other villagers who came to their house. He could not recollect as to whether he informed the police that the victim threatened to commit suicide if she is taken back to her in-laws house and not given money. He further deposed that he informed the police that the deceased told her grandmother that if she is sent back to her matrimonial house she would kill herself. The appellants and the brother of the appellant No. 1 were torturing her. He could not again recollect whether the deceased told him about any money demand by the appellants. He denied that the family of the deceased did not accept her marriage with the appellant No. 1.
26. PW 6 Kamala Das, grandmother of the deceased, deposed that the mother of the deceased is her elder daughter. She deposed that the father of the deceased is one Budhhadeb Polley. She deposed that the marriage of the deceased with the appellant No. 1 took place in a local temple. She deposed that marriage was a result of a love affair. She said that the in-laws and husband of the deceased assaulted and 14 tortured her. She stated 14 days after marriage the deceased came to her house and refused to go back to her matrimonial house for she was being tortured for demand for Rs.20,000/- kept in a fixed deposit account. She also said that the deceased was abused and teased in filthy languages by the appellants. She informed PW 3 and PW 5 of the above and consulted with each other and took the deceased back to the house of the appellants alongwith Rs.500/- and garments to the deceased . She said that the deceased left the house of the appellant on the said date and that deceased died on the next day by committing suicide.
27. In cross-examination she deposed that the deceased has a sister called "Tumpa" who was around 9 years younger to her. She said that the deceased was beautiful. She also admitted that her family wanted the deceased to get married to a well-established boy with a good family background. She stated that they were informed of the marriage of the deceased with the appellant No. 1 by the father of the appellant No. 1 at about 9:00 pm.
28. She admitted that she would have given the customary gifts in the event if marriage was held by way of negotiation and that wedding gifts were given to the daughters who were married of from her family. She admitted that the deceased and her husband were not invited to their home even after being informed of marriage. She had no knowledge of the love affair of the accused persons nor went to their house before marriage. The wife of the older brother of the appellant 15 No. 1 was living in her paternal house during the time of incident. She also admitted that the accused never demanded any sum of money when they visited their house nor did she enquire if the appellants had any monetary demands. She claimed that the appellant No. 1 was a student at the time of marriage.
29. She stated that they have toilet in their house similar to all other local houses. This contradicted by all defense and independent witnesses. She also stated that the accused had toilet in their house. This is a false statement. She claimed that she does not go outside of the house. She stated that during marriage or even thereafter there was no interaction between the house of the appellants and her house and their respective family members. This Court finds a large number of contradictions in the evidence of this witness.
30. PW 7 Mousumi Das is maternal aunt of the deceased, wife of PW 4. She came to know of the marriage of the deceased and that the deceased later resided at her matrimonial house thereafter. On 11th January, 2006 the deceased came to the house of the PW 1. PW 7 was present along with her mother-in-law when the deceased came around in the noon. She stated that deceased told her that the appellant No. 2 caught hold of her by hair on the previous night and the husband coerced her to bring a sums of money kept in the fixed deposit account. She further stated that at the relevant time her husband tried to grab the deceased by the neck while insisting on the sums of money.
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31. She also stated that her mother-in-law of the deceased often teased and demanded money lying in the fixed deposit account and insisted that she die. She claimed that the mother-in-law assaulted the deceased and that if the deceased failed to bring the said sum of money lying in the fixed deposit, she would get her son remarried. These could not have been to the personal knowledge of the PW 7. No other witness deposed as such.
32. She thereafter informed her husband and the PW 1 and other sisters- in-law and their husbands of the incident narrated by the deceased. She also said that after consulting with each other PW 3, 4 & 5 visited the house of the deceased with a sum of Rs.500/- and some clothes of the deceased. The appellant No. 2 is stated to have assaulted PW 5 on that day and had used abusive languages against the persons who visited their house. On the next day the appellant No. 1, his brother and two other persons namely Gobordhon and Kelo asked of the whereabouts of the deceased from her husband and her family members were informed that the deceased did not come to their house on the said day. She thereafter came to know from her husband that the body of the deceased was found in a naked condition near the railway line. She could not have personal knowledge of the incident as she did not visit the place of occurrence. She narrated the incident thereafter she came to know as stated by the PW 1.
33. In cross-examination she stated that she does not remember the date of her marriage or the date of birth of her sons. She stated that she 17 had no ill-will towards the father of the deceased. She claimed to have loved the deceased like her own daughter and similarly deceased loved her back like her own mother. How come then, did the deceased not tell her of her love affair or the alleged dowry demand of the accused. However, the deceased did not inform of any affair with anybody or about the appellant No. 1.
34. She claimed that the deceased used to go for private tuitions at 9:00 am in the morning and 4:00 pm in the afternoon and other working days at 6:00 am. She stated that the deceased went to Begumpur to another private tuition. The deceased had a lady tutor in the morning and in the afternoon. PW 7 was not aware as to whether the deceased went to appellant No. 1 to learn English.
35. She did not go to meet the deceased at her in-laws house. She was not aware of the days when the other members of the P.W. 1's family got married. There was no social relations between the family of the accused and her own neither was there any enmity. She stated that some members of her family went to the house of the accused for the first time on the 11th of January, 2006.
36. She could not recollect whether she was examined by the police in connection with the above case or whether she stated anything to the police as regards the date of marriage. She did not ask the PW 1 to send any gifts to the house of the accused. She did not invite the deceased or her husband to her house. She claimed that the 18 economic status of her family and particularly PW 1 was higher than that of accused persons.
37. She claimed to have informed the police that the deceased came to their house crying on the 11th of January and informed them of the demand of dowry of a sum of Rs.20,000/-, by the appellants. She also stated that the deceased told her and PW 6 that she was assaulted by the appellant No. 1 and 2. She stated that her husband was acquainted with the said Kelo and Gobordhon who came to their house on the 12th of January to enquire the whereabouts of the deceased.
38. She recalled having told the police as to how her husband and other in-laws found the deceased on the railway line. She denied that her caste and economic status changed after her marriage. She claimed that the family of the deceased was not inclined to send a sum of Rs.20,000/-. The credibility of this witness is found to be suspicious.
39. PW 8 Kashinath Adak, father-in-law of the deceased. He deposed that after the death of the victim the police came to search the house of the appellants but did not find anything. He claimed to have put a signature on a seizure list. He claimed that he thought and knew that the victim had died due to an accident. He could not recollect as to whether the relatives of deceased came to his house on the 11th of January, 2006. He was not present in the house at the time when the PW 2, 3 & 5 came to his house on the 11th, of January, 2006. 19
40. PW 9, Ajit Patra, is a villager and scribe of the complaint. He is also a seizure witness of the articles seized by the police at the place of occurrence. He is also seizure witness to the search conducted by the police at the house of the accused.
41. PW 10, Kalipada Bag, is a villager and a seizure witness of the article seized at the place of occurrence. He has stated in his deposition that he lived opposite of the house of the accused persons. He stated that 98% of the houses in that area do not have a toilet. He contradicted the evidence of the police that he had signed on the seizure list at the place of occurrence as he stated that he was ill and was on bed rest at home on the advice of doctor on the 13th of January, 2006.
42. PW 11, ASI Kartik Kundu, another seizure witness at the place of occurrence.
43. PW 12, Subhas Chandra Ghosh, a seizure witness of the dead body and one of the persons who carried the dead body from place of occurrence to Chanditala S.D. Hospital for post-mortem. He collected the wearing apparels of the deceased after the post-mortem and handed over to PW 20 S.I. of Police against a proper seizure list. He identified his signature on such seizure list being Exbt. 8.
44. PW 13, Constable Sushil Kumar Dey who took seized wearing apparels from PW 12. The above contradicts the evidence of PW 12 that he gave such apparels to PW 20.
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45. PW 14, Tapas Bhuinya, another seizure witness who stated that PW 12 handed over the wearing apparel of deceased to PW 20.
46. PW 15, Amalesh Paul, Station Master of Janai Road Railway Station. He claimed that during night duty on the 12/13th January, 2006, he was informed by the onduty gateman that a dead body was found on the rail line between Janai Road and Begumpur Railway Station between rail level crossing gates Nos. 16 and 17. He stated that since 1994 he was posted in the same Railway Station and may have reported about 6-7 cases of death by accident on the railway line near the said Railway Station. He stated that Investigating Officer did not seize any copies of such seize. He also deposed that he was not informed that the dead body was without clothes.
47. PW 16, Bhabataran Dhara, is the pradhan of Panchghara Gram Panchayet. He gave a certificate to Swapan Dey that Tushi Adak (Victim) had committed suicide. He had issued certificate as per the request of Swapan Dey without holding any enquiry.
48. PW 17, Prasanta Ghosh, brother of PW 7, visited the house of PW 1 on 13th January, 2006. He informed the Court that a copy of the FD receipt and the reading material of the deceased were seized from the house of the deceased 7 months after the incident. He was a signatory to such seizure list marked as exbt. 10. A photograph of appellant No. 1 was affixed in a book kept by the deceased. 21
49. PW 18, Debasis Nath Chatterjee, Officer-in-Charge, Kamarkundu GRPS, who registered and started the UD Case No. 3 of 2006 dated 13th January, 2006.
50. PW 19, Budhhadeb Polley, is the father of the deceased. The evidence indicates that he neither cared for the deceased nor made enquiries about her welfare. He admittedly lived in a separate house away from the village with his second wife and family.
51. He had deposed evidence only based on what he heard. He deposed that a FD account of Rs.20,000/- was jointly held in the name of his wife (mother of the deceased) and himself, later post demise of his wife the FD was currently held in the name of the deceased and himself.
52. PW 20, Narendranath Kar, S.I. of Police, who conducted the inquest along with the Executive Magistrate, one Sanjukta Chakraborty. She did not depose evidence in the trial. He sent the dead body after inquest and examination for post-mortem through PW 12. He said that many people had assembled by the time he reached the place of occurrence. He deposed that he had noted down the wearing apparel of the deceased while holding the inquest examination.
53. PW 21 is Dr. S. Mukherjee who conducted the post-mortem examination. He noted the inquiries. He identified the post-mortem report. He claimed to have seen fractures, sharp cutting injuries, bruises and lacerated injuries on the dead body. He did not note the exact measurement of the injuries in his report. He indicated that 22 the injuries may have been caused either by light sharp cutting instrument or heavy sharp cutting instrument. He did not note the type of the lacerated injuries. He did not mention the shape of the lacerated injuries. He admits that non-mentioning of such shape would prevent any conclusion as regards such injuries. He did not mention the type of fracture sustained. Although he noted the condition of brain but only stated in his report that there was a haemorrhage. No further details of the head injury were mentioned in the report. The nature of the bruises on the body of the deceased was also not noted. He found liquid in the stomach of the deceased. He found injury on the liver but did not note the nature of the injury. The nose of the deceased was also injured. He found lung injury and noted it in his report but did not mention the nature or type of injury.
54. He admitted that his report indicates that the injuries were sustained for being hit by a running train and they could either be suicidal or accidental or homicidal. He stated that decapitation occurs whenever a person lying down on a railway line to kill himself in all cases. There was no decapitation found in the case of the deceased. He stated that if anybody commits suicide by lying down on the railway line then the grease and other dirt from the engine are to be found in the garments of the deceased. No such dirt was found on the garments of the deceased or her person.
55. PW 22 is Nitai Chandra Ghosh, S.I. of Police and the Investigating Officer of Kamarkundu GRPS. He deposed that he visited the place of 23 occurrence and drew a sketch map and prepared index. He examined the de facto complainant under Section 161 of the Cr.P.C. He consulted with the police officer who held the inquest report. He examined the available witnesses under Section 161 of the Cr.P.C. . He admitted that he searched the house of the accused persons but did not find anything. He received seized articles from the S.I. of Police PW 20 who held the inquest along with wearing apparels. He examined EO and recorded his statement under Section 161 of the Cr.P.C. He exhibited the seizure list of the body, wearing apparels and the broken conch shell bangle and vermilion bangle. He also exhibited the seizure list of the copy of the FD account and the dictionary from the house of the victim. He collected the post-mortem report and submitted the chargesheet.
56. In cross-examination he deposed that he did not resume and commence investigation on the basis that it was a case of suicide. He denied that there was an agreement recorded in the FIR as regards any account of money to be exchanged between the family of PW 1 and the appellants. He admitted that he did not collect information as to whether the deceased and her husband went on a honeymoon. He did not enquire as to who the deceased visited for private tuitions and who her friends were. He did not enquire as to the place of work of PW 1. He did not make enquiries of the nature and character of deceased or whether any customary gifts were given during the marriages of the boys and girls of the family of the PW 1. 24
57. He did not find any other positive evidence that the accused demanded money from the deceased other than from the oral statement of the witnesses. He also did not find any positive evidence that there was an agreement between the families of PW 1 and the appellants of any gifts before or after marriage. He did not find any demand or letter from the accused persons to the PW 1 demanding any money. He also did not find any statement of any witnesses that the deceased was depressed after marriage in the house of the accused. There was no written document from the accused persons showing any demand of money. There was no suicide note either in the place of occurrence or in the house of the deceased. He found that the deposit cash certificate was originally in the name of PW 19 and mother of the deceased. Thereafter, in place of the deceased's mother, the name of the deceased was entered. Only a Xerox copy of the deposit account was seized the veracity of the Xerox copy was not verified with the bank. There was no evidence that the deceased was treated by any doctor for torture caused by the accused. None of the witnesses had stated that the victim to commit suicide.
58. He claimed to have found material to the effect that the appellants sent a proposal to the house of the PW 1 for asking dowry; particulars of such material have not been brought on record. He further stated that the accused did not directly propose or demand dowry from the PW 1 by going to his house. He claims not to have found that it is on 25 account of the failure of the unlawful demand of the accused which provoked the deceased to commit suicide.
59. He did not make a prayer for police custody of the appellant or recovery the seized articles and other articles. The distance between the houses of the appellant and that of the PW 1 is about 5-6 houses but the same was not recorded in the CD. He could not state the names of the owners of those houses in between. He did not seize the garments and clothes of the deceased from the house of the accused person.
60. He did not seize blood stained stones and blood stained earth where the dead body of the deceased was found lying. The same was not noted in the CD. He did not also inquire or also ascertain the time period during which the love affair between the deceased and the husband went on. He did not collect any certificate from the local gram panchayat as stated by the PW 16. He did not send the wearing apparels for forensic examination. Hence it could not be ascertained by the injuries caused by the wheel of the rail or from other parts of a rail compartment. The dead body of the deceased was already taken away from the place of occurrence before he reached. He examined witnesses at different places.
61. The prosecution did not produce charge sheet named witnesses namely Aurobindo Adak, Surajit Adak and Rupali Adak. He did not find any evidence as to whom among the local villagers saw the deceased go to her grandfather's house or who saw the maternal 26 uncles and others visiting the house of the accused on the 11th of January, 2006.
62. He did not question Swapan Dey as to whether he was beaten up by the appellant No. 2 with broomstick. Swapan Dey could not show any injury nor was a GD being lodged by him in that regards. He is not sure where the dead body was removed from. He did not ascertain the actual distance between the railway track and the dead body was found. He denied that PW 3 told him that the deceased told her grandmother of any demand of money by the accused persons.
63. He also denied that the PW 4 told him that Gorbardhan and Kelo visited the house of PW 1. He also denied that PW 5 told him that after 11:00 pm on 12th January, 2006 that PW 3 and PW 4 found the deceased on the railway line. He further denied that PW 6 told him or recorded a statement that the deceased told that that if she would be sent back to her matrimonial house again, she would commit suicide or that the appellants and the brother of the Appellant No. 1 caused torture on her. He further denied that PW 7 told him that on 11th January 2006 the deceased came to the house of the PW 1 crying that the accused persons demanded Rs.20,000/- or that the Appellant No. 2 assaulted the deceased with a broomstick. He also denied that PW 7 told him that on 11th January 2006 the appellant No. 1 caught the neck of the deceased demanding Rs.20,000/-. He also denied that PW 7 told him that her husband had taken to her railway line where the 27 dead body of the deceased was found and that they went to Chanditala P.S. thereafter.
64. The prosecution witnesses were examined under 313 Cr.P.C. The appellant No. 1 denied that dowry was not given to him as the marriage occurred due to love affair as deposed by PW 6. He also denied that PW 6 ever went to her house after marriage as deposed by PW 1, 3, 4 & 7. He also denied that the dead body was not found without clothes. He also denied that the victim committed suicide and that the prosecution case was instituted as the marriage occurred due to love affair between himself and the deceased. Appellant No. 2 also denied that the deceased ever went to her house after marriage as deposed by PW 1, 3, 4 & 7. She also denied that the body was found in naked condition.
65. The defence examined as many as 10 witnesses.
DW 1 - Surajit Adak, cousin brother of Kiran Adak DW 2 - Rita Adak, wife of Barun Adak and sister-in-law of appellant No. 1.
DW 3 -Rupali Adak, villager.
DW 4 - PradipKoley, villager.
DW 5 -Jyotiprakash Adak, villager.
DW 6 - Sambhu Malik, friend and classmate of appellant No. 1.
DW 7 - SanjitKarmakar, another villager.
DW 8 - HaripadaAdak, another villager.
DW 9 - Madan Das, villager and son-in-law of the Adak family.
28DW 10 - Kiran Adak, the appellant No. 1.
66. During the examination-in-chief of DW 1 Surajit Adak admitted that he frequented the house of appellants. He visited the house of the appellants event after marriage of the appellant No. 1. He deposed that the family of deceased never accepted the marriage and was economically higher in status than the family of the appellants. He visited the house of the maternal uncle of the deceased and had social relations with them. The Astamangala ceremony (usually performed in the bride's parental house) in the instant case was performed in the house of the groom i.e. appellant No. 1. The bride's house refused to perform the said ceremony in their house. There was no demand for dowry or torture upon the deceased by the appellants in the presence of the DW 1. He was friendly with the deceased prior to marriage. The deceased never told him that appellants caused any form of torture or demanded dowry from her. He denied that the deceased ever went crying to her paternal house complaining against the appellants.
67. There was no latrine in 98 per cent of the families residing in the village Panchghara such people went to the railway line for answering the nature's call as did the family members of the appellants. None of the family members of the appellants visited the maternal house of the deceased prior to or after her death.
68. In cross-examination he said that he worked as a jewellery setter in a jewellery shop in Barabazar, Kolkata. He denied that there was any 29 toilet or latrine facility in the house of the appellants. He admitted that he was a charge-sheet witness No. 11 but was not asked to deposed evidence by the police.
69. DW 2 is Rita Adak, wife of Barun Adak and sister-in- law of the appellant No. 1. She deposed that during her marriage there was no demand for any dowry made by the appellants. She deposed that the family members of the deceased did not accept her marriage with the appellant No. 1. She stated that at the time of marriage appellant No. 1 also worked as a jewellery setter in a shop of Barabazar, Kolkata. She denied that there was any demand for dowry made by the appellants against the deceased or her family members. She deposed that there was no toilet facility in her matrimonial house and that of the deceased. She said her mother-in-law always accompanied her to the railway line for the purpose of relieving herself. She deposed that on the date of death, deceased went to the railway line on three or four occasions to relieve herself.
70. In cross examination she deposed that she had younger brother-in- law called Arun Adak who is not married. She was at her matrimonial house on the day the deceased passed away. She also denied that she lived in the house of her father seven days prior to the date of incident. She admitted that despite going to relieve herself three to four times to the rail line, the deceased did not see any doctor or take any medicines.
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71. DW 3 is Rupali Adak, villager and deposed that all families in the village knew each other very well and visited their respective houses on social ceremonies. She also said that she visited the house of the deceased on a regular basis. She deposed that the grandfather and family of the deceased did not accept her marriage with the appellant No. 1. She frequented the house of the appellants as well as the PW 1 before and after marriage. She said that she also deposed that the Astamangala ceremony of the deceased was performed at the house of the appellants contrary to normal practice, as the family of the deceased did not invite her or the appellant No. 1 to perform such the ritual. She denied that the family of the accused ever caused torture on the deceased or demanded money from her. She denied that the uncle of the deceased was assaulted and hit with the broom when he came to visit the deceased and her family. She denied that there was any latrine facility in her matrimonial house. She deposed that her family members in the matrimonial house visited the local railway line to ease themselves or answer nature's call. She admitted that her statement was recorded under Section 161 of the Cr.P.C.
72. DW 4 is Pradip Koley, villager. He runs a printing press in the village. He knows the de facto complainant Rabin Das and had access to his house as also that of appellant Kiran Adak. He deposed that the Astamangala ceremony was held in the house of the accused persons. He was not aware of any torture or demand for dowry being made by the accused on the family of the deceased or on the 31 deceased. He reiterated that there was no latrine or lavatory or urinal in the house of the accused persons and that they use the railway line for such purpose. He reiterated that the family of the deceased did not accept her marriage with the appellant No.1. He admitted that he saw the deceased lying dead on the railway line and also saw many people assembled thereat. He said that many of the local residents accidentally died on that spot of the railway lines while easing themselves.
73. DW 5 is Jyotiprakash Adak, a villager, who knew the appellant and his family very well as also the family of the deceased. He frequented the house of the PW 1 and the appellants. He reiterated that the family of the deceased did not accept her marriage with the appellant No.1. He reiterated that Astamangala ceremony was held in the house of the appellants. He denied that there was any torture, physical or mental, caused upon the deceased by the appellants. He also denied that the deceased ever told him about any torture on her. He reiterated that many persons of the village died due to railway accidents while easing themselves at the same spot that the deceased had died. He vehemently denied that the deceased committed suicide as a result of any torture by the accused persons.
74. PW 6 is Sambhu Malik was a friend and classmate of the appellant No. 1. He was very friendly with the appellant No. 1. He also said that the family of the deceased did not accept the marriage of the deceased with the appellant No. 1. He denied that the accused ever 32 caused any torture on the victim or that there was any demand of Rs.20,000/- which was lying in form of a fixed deposit in the name of the deceased. He was not told by the deceased that the appellant demanded the said sum of money from her towards dowry or torture the deceased. He also said that the PW 1 and his family never told him about any torture of the deceased by the appellants. He reiterated that similar to other villagers the family of the appellants used the railway line for easing themselves. He named at least three persons who died on the railway track during easing themselves. He visited the house of the accused during Astamangala ceremony.
75. DW 7 is Sanjit Karmakar who saw the Astamangala ceremony in the house of the appellants. He deposed that the PW 1 and his family did not accept the marriage of the deceased with the appellant No. 1 and that he had good relations and access to the house of the appellant No. 1. He did not see or hear of any torture on the deceased by the appellants, neither had the deceased ever told him about any such torture. He particularly denied that the family of the deceased i.e. PW 1 and others never informed him of any torture on the deceased. He said that he was a cited witness in the charge-sheet but was not called upon to depose. He was personally invited by the appellant No. 2 for the Astamangala ceremony which he attended.
76. DW 8 is Haripada Adak. He was well acquainted and in talking terms with PW 1, grandfather of the deceased. PW 1 Rabin Das never told 33 him about any torture or dowry demand from the appellants. He is a cousin of appellant No. 1.
77. DW 9 is Madan Das who was a brother-in-law of the appellant No. 1. He was named as charge-sheet witness but not asked to depose in evidence. He had access to the house of both the PW 1 as well as the appellants'. The PW 1 never told him about any torture upon the deceased by the appellant nor did the deceased ever tell him about any such torture as such.
78. DW 10 is the appellant No.1 who admitted that he was in a love with the deceased for about 3 years prior to the marriage. He deposed that the deceased left her maternal uncle's house for the marriage on the pretext of going for a private tuition to one Shyam Guin. He deposed that the deceased had left two exercise books for English and History in her matrimonial house that were written in her own handwriting. The said books were marked as Exbt. A and B but the same did not find place in the Lower Court Record. He deposed that the deceased did not go to her maternal uncle's house or grandfather's house after marriage as she had forbidden him from informing people at her grandfather's house that she was married. He denied that there was any demand of dowry upon the deceased or that she was ever assaulted. He also deposed that the deceased wrote a diary presented by him to her that was marked as Exbt. C. The said diary did not find place in the Lower Court Record. He denied that anybody from the in-laws house ever visited his house.
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79. In cross examination he denied that the police seized the exercise books or the diary despite being told of the same. He identified the signature and handwriting in the exercise books and diary as that of the deceased. He denied having written the exercise books and diaries himself. He also denied that the exercise books and diary were manufactured by him. He denied that anybody in the family of the deceased accepted their marriage.
80. The accused No. 1 and 2 being appellant No. 1 and 2 were convicted under Section 498A and 306 of the Penal Code and under Section 4 of the Dowry Prohibition Act. The third accused was acquitted.
81. Let us take the evidence that has come on record under Section 498A and Section 4 of the Dowry Prohibition Act. The only evidence showing alleged claims of dowry emanate from the victim and the family members of the victim. They are found in the depositions of the prosecution witnesses; viz., PW 1, 3, 4, 5, 6 and 7 (deceased's maternal grandfather, maternal uncles, maternal grandmother and maternal-aunt @ Mami respectively).
82. Evidence of other prosecution witnesses are merely hearsay evidence of dowry demand made upon the deceased. The incident of the deceased coming for rescue to PW 6 and 7; running and crying, was a mere piece of narrative that the PW 1, 3, 4 and 5 heard from the PW 6 and 7.
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83. The evidence of alleged dowry demand being made upon the relatives of the deceased is particularly found in the deposition of PW 3 and 5 (deceased's maternal-uncles @ Meshos), who claim to have visited the appellant's home, in the context of taking their niece (deceased) back to her matrimonial house along with some of her wearable garments and a sum of Rs. 500/-, but even this fact remains uncorroborated as no independent neighbour has been called upon, by the prosecution as an ocular witness to depose that they have witnessed the incident in toto, as narrated or deposed by the PW 3 and 5. The first thing strikes the mind of this Court is the statement of the Investigating Officer that the PW 3, 4, 6 and 7 have not made any statement under Section 161 of the Cr.P.C. pertaining to the fact that the victim was harassed and tortured for dowry. Coupled with the above fact is the evidence of the independent witnesses, as also on behalf of the defence that there was no demand for dowry ever or torture as deposed by PW 1 to PW 3, 5, 6 & 7.
84. DW 1 to 9, who had access and social relations and were in talking terms with the PW 1 wholly denied that the PW 1 had ever informed them of any dowry demand or any torture in that respect caused upon the deceased of her family by the appellant. The accused No. 1 and the deceased were admittedly in love for three years. It is, therefore, unlikely that within 4 days of marriage a dowry demand could possibly emerge. Thus, the story of being tortured by the appellants is also difficult to believe. One must also give due regard to the fact that 36 the Astamangala ceremony (blessing of the newly married couple) which ought to have been performed in the matrimonial house of the deceased was in fact performed at the house of the appellants, when friends and neighbours were hosted by the appellant and his family. A demand for dowry or torture is inconsistent with the above chain of events. The chances of a concocted story of dowry demand and suicide appear more plausible in view of the fact that the economic status of the victim's family was much higher than the appellants. There is overwhelming evidence that family of the deceased did not accept the marriage between the appellant No. 1 and the deceased. Admittedly the deceased was very good looking and the PW 1 grandfather was a railway servant.
85. There is also no clear evidence except that of PW 1, 7 when compared with that of PW 15 and PW 19 that the body of the victim was found naked. The chances of a person taking off her clothes to ease herself or even to commit suicide are quite unlikely, unusual and unheard of. The grandmother of the deceased, Kamala Das (PW 6) and PW 7 ascertaining that there was a toilet of the house of the appellants is clearly contradicted by each of the evidence of the 10 defence witnesses (DW) including some prosecution witnesses. On the contrary PW 10 and DW 1 had stated that 98 per cent of the residents of the village did not have toilet in their house and used the railway line for answering the call of nature appears more credible. PW 6 grandmother of the deceased who admittedly does not leave the house 37 and has not visited the house of the appellants could not have, therefore, known whether there was a toilet in the house of the appellants.
86. Further the evidence of PW 7, aunt of the deceased, that she treated the deceased as her own daughter is also not believable since she was not even aware for three years love affair that the deceased had with appellant No. 1. If the family of the deceased had indeed accepted the marriage they would have performed Astamangala ceremony in their own house or would have visited the house of the appellants to ascertain her welfare and enquired of the alleged torture and demand for dowry. There is yet another fact that is relevant here PW 1 deposed that there was no fog in the night of 11th January, 2006 which is most unlikely. The area is a part of semi-rural of the Bengal and a village having fog and smog in the late hours of the night is common knowledge. On the contrary PW 1 & 3 specifically deposed that there was fog in the night of the date of incident.
87. The above contradictions in the evidence of the prosecution witnesses, particularly the family members of the deceased, throw serious suspicious on the veracity and the weight of their evidence. There is no other contemporaneous evidence or corroboration from any independent witness of the occurrence of any demand for dowry or any chances of any torture, hence the same cannot be conclusively arrived at. It is also relevant to note that the deceased went to ease herself to the railway line three or four times that night. This fact 38 coupled with irrefutable evidence of the defence witnesses that many people past have died on the said railway line while easing themselves lends more credence to the defence of the appellants, that the deceased died accidentally while relieving herself.
88. The aforesaid analysis with regard to the death of many people in the past on the said railway line while easing themselves is also relevant for the purpose of a decision of conviction on the ground of Section 306 of the Penal Code. The prosecution could not establish any bad blood between the appellant and the victim. On the contrary there is evidence to suggest that the victim was not comfortable and use to relieve herself on a railway track appears more plausible. The absence of 161 statements in the Lower Court Records and diary of the victim throw serious suspicious in the mind of the Court as to the manner of conduct of the investigation and the transmission of the record to this Court. There is no evidence that handwriting of the victim in the diary was sent for expert examination or compared with any other handwriting of the victim. The victim's handwriting was available in a dictionary recovered from her house albeit seven months after the incident.
89. The post-mortem report was also not conclusive and to seizure list has been rather casual and inconclusive. What is but relevant from such post-mortem report is that in case of a personal desire to commit suicide a person would normally lay herself in front on a railway track as that would lead to certain decapitation as a normal consequence. 39 No such decapitation has been found. The post-mortem report further indicates that if the victim fell underneath the running train in between the tracks her clothes would have revealed dirt, dust and other materials from underneath the railway engine or the compartments. Even if the victim jumped in front of running train, injuries would have sustained on both sides of the body, one from the impact from the train and second upon being flung away and with the fall on the railway track nearby. There is no evidence in the post- mortem report to this effect. Injuries have only been found on one side on the victim's body. The clothes of the victim were not even sent for Forensic Laboratory report.
90. For the reasons stated hereinabove, there is no clear evidence that the victim had committed suicide, the question of any abetment to suicide hence doesn't arise as the suicide itself has not been proved beyond reasonable doubts by the prosecution. The appellants ought not to have been convicted under Section 306 of the Penal code and should have been given the benefit of doubt.
91. The Counsel for the appellant have cited the following judgments:
i. Takhaji Hiraji v. Thakore Kubersing Chamansing reported in (2001) 6 SCC 145 ii. State of U.P. v. Wasif Haider reorted in (2019) 2 SCC 303 iii. Ganga Singh v. State of M.P. reorted in (2013) 7 SCC 278 iv. Pawan Singh vs. State & Ors. Criminal Appeal 929/2011 v. S.S. Chheena v. Vijay Kumar Mahajan reorted in (2010) 12 SCC 190 40 vi. Amalendu Pal v. State of W.B. reorted in (2010) 1 SCC 707 vii. Mangat Ram v. State of Haryana reorted in (2014) 12 SCC 595 viii. Hans Raj vs. State of Haryana. Appeal (Crl.) 609 of 1997
92. The ratio held in Amalendu Pal (supra) has been followed and applied in the instant case. The relevant Paragraphs has been set out hereinbelow:
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
(Emphasis Added)
93. For the reasons stated hereinabove the appeal must succeed. The impugned judgement and the order of conviction is liable to be set 41 aside and is hereby set aside. The appellants are given the benefit of doubt and acquitted.
94. The bail bonds are discharged.
95. There shall be no order as to costs.
96. Urgent Photostat Certified server copy of this judgment, if applied for, be supplied to the parties on urgent basis.
(Rajasekhar Mantha, J.)