Calcutta High Court (Appellete Side)
The State Of West Bengal vs Kajal Kora & Ors on 2 June, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Shivakant Prasad
G. A. No.15 of 1988
The State of West Bengal
Vs.
Kajal Kora & Ors.
For the Appellant/State : Mr. Saryati Datta.
For the Respondents : None.
Heard on : 02-06-2017.
Judgment on : 02-06-2017.
Joymalya Bagchi, J.
The appeal is directed against the judgment and order dated 9th February, 1988 passed by Shri S. P. Dutt, learned Sessions Judge, Burdwan acquitting the respondents of the charges under Sections 148/149/302 of the Indian Penal Code in Sessions Trial Case No.13 of 1987.
Prosecution case as levelled against the respondents is to the effect that on 31st December, 1985, one Sasthi Charan Ruidas lodged a complaint with the Officer-in-Charge of Raina Police Station alleging that on returning from police station, he found his wife, Kalpana Ruidas, the victim, hanging dead in the east facing room of his house and on query, his mother, Smt. Durga Bala Dasi, P.W.2, intimated him that at about 9 to 9-30 a.m., the respondents, being armed, had assaulted his wife. Upon protest, his mother (PW2) was also assaulted. P.W.2 further intimated his son that on being assaulted, his wife committed suicide. Subsequently, he found the victim was hanging from the eastern side room, as aforesaid.
Pursuant to investigation, charge-sheet was filed under Sections 148/149/302 of the Indian Penal Code against the respondents, who pleaded not guilty and claimed to be tried. Nine witnesses were examined during the trial and a number of documents were examined.
The specific defence of the respondents was that there was enmity between the defacto complainant, Sasthi Charan Ruidas and the deceased, Mongal Kora over the issue of an illicit relation between the defacto complainant's wife, Kalpana Ruidas and the said Mongal Kora. It was their further defence that over such dispute, the defacto complainant and his mother subjected Kalpana to physical assault and consequently, the victim had died. In order to cover their misdeeds, the defacto complainant and his mother had filed the instant case implicating the respondents, who are the relations of the aforesaid Mongal Kora.
Upon considering the evidence and/or the materials on record, the trial Judge acquitted the respondents of the charges levelled against them.
Mr. Saryati Datta, learned Counsel, appearing on behalf of the appellant State, submitted that the trial Judge had failed to appreciate the evidence of P.W.2 and P.W.4, who are eyewitnesses of the incident. Their ocular evidence is corroborated by the autopsy surgeon who found 26 injuries on the person of the victim and notwithstanding such incriminating evidence, the order of acquittal was passed.
Let us examine the aforesaid submissions in the light of the evidence on record.
P.W.1, Sasthi Charan Ruidas, is the defacto complainant and the husband of the deceased. He stated that on the date of the incident, he had gone to Raina Police Station to lodge a complaint against one Mongal Kora, who had come to his house in a suspicious manner few days ago at night. He had caught him and reported the matter to Gopal Ruidas, a Panchayat member. He had called for an arbitration over the matter. Mongal and his parties had threatened him with dire consequences for lodging complaint with the village Panchayat members. On the date of occurrence at about 2 to 2-30 p.m., he found his mother weeping and his wife was hanging in the room. On query, his mother stated that the respondents had entered the house, being variously armed, and had assaulted his wife as well as his mother. As a consequence, his mother fled away. On her return after some time, she found the door was bolted from outside and after entering the room by removing the bolt, she found that the victim, Kalpana, was hanging inside with a rope round the neck. She had identified all the accused persons.
It, therefore, appears that P.W.1 is a reported witness and admittedly had not seen the assault upon the victim by the respondents with his own eyes.
P.W.2, Durga Bala Dasi, is the mother-in-law of the victim. She claims to have seen the assault upon the victim. She deposed that on the fateful day when her son had gone to the police station, the respondents had come to their house and assaulted her daughter-in-law. She also deposed that their dwelling house comprised of three rooms and her son and daughter-in-law occupied the western side room. She further deposed that she tried to resist the respondents whereupon she had also been assaulted and had, consequently, fled away. She, however, admitted that she had not given any information to anyone. When she returned home, she found that the room of her son was bolted from outside and after entering the room, she found the dead body of her daughter-in-law, Kalpana, was hanging from the ceiling. She raised hue and cry and many villagers entered the house including Gopal Ruidas. Her son also returned from the police station and she apprised him of the incident. She also stated that in the evening, police came to their house and held inquest on the dead body of her daughter-in-law.
In cross-examination, P.W.2 admitted that the room where she resided was also bolted. She used to occupy a separate room. Both the rooms were bolted. The body was hanging in the eastern side room. She had good relation with her daughter-in-law. The accused persons had assaulted her daughter-in- law as she had talking terms with Mongal. She stated that they were not aware of the relationship between her daughter-in-law and Mongal and thereby there were no such frequent quarrels between them over such issue. She did not admit that her son had assaulted her daughter-in-law and as a consequence, she had committed suicide.
P.W.3, Gopal Ruidas, is a relation of P.W.1 and a Panchayat member of the locality. He deposed that before the death of Kalpana, P.W.1 complained about Mongal alleging that he had come to their house in the dead hours of the night few days ago and he had convened a 'Salish' over the said issue. Mongal attended the said 'Salish', but, had refused to abide by the verdict. At about 9 to 9-30 a.m. on 31-12-1985, they received information that Mongal died by taking poison. Information was sent to police station through Nihar Ranjan. On that day, P.W.3 also heard about the death of Kalpana. On hearing such news, he went to their house in the afternoon, whereupon P.W.2 complained that the respondents had entered their house and assaulted Kalpana and P.W.2. P.W.3 further deposed that as per the dictation of Sasthi, he wrote down the complaint, Ext.1/2. Many villagers were present and put signatures on the inquest report.
In cross-examination, P.W.3 deposed that only a wall intervenes the house of Mongal Kora and the accused persons.
P.W.4, Nimai Ruidas, deposed that Sasthi Ruidas is his 'Mama' by village courtesy. Two years ago, there was a scuffle when he was thrashing paddy in their 'khamar'. Sasthi Ruidas had gone to the police station at that time. His wife and mother were present in the house. Respondents, being armed with 'lathi' and 'jhata', had assaulted Kalpana as well as 'Didima'. Didima left the place. He did not intervene in that scuffle nor did he go there. He further stated that in the evening, police came. They found the dead body of 'Mami' hanging from a bar. He did not state anything to the police. Thereafter, he stated that he stated everything to the police. The dead body was removed thereafter.
In cross-examination, he denied that he stayed in the house of Sasthi. He resided in an adjacent house. House of Sasthi was surrounded by walls. He resided to the eastern side of the house of Sasthi at a distance of 10/12 cubits. Many villagers came to the place of occurrence in the evening. He denied that due to maltreatment upon his 'Mami', she committed suicide and hence, no villagers came to depose in their favour.
P.W.5 is the Autopsy Surgeon. He held Post Mortem examination on the dead body of Kalpana and found the following injuries: 1) Abrasion 3 Cm. X 0.5 Cm. over left side of fore-head; 2) Parallel lines of bruise in area of 8 Cm. X 3 Cm. each line being 8 Cm. X 1.25 Cm. with a gap of 0.5 Cm. in between two places over middle third outer front of right arm; 3) Abrasion 0.5 Cm. X 0.2 Cm. over outer third front part of right forearm; 4) Bruise 2 Cm. X 1 Cm. over nuckle of right index finger; 5) Three pair of parallel line of bruise in area of 6 Cm. X 4 Cm. with gap varying between 0.5 Cm. to 1 Cm. situated over middle third outer part of right thigh; 6) A pair of parallel line of bruise in area of 5.5 Cm. X 2 Cm. with a gap of 0.5 Cm. in between placed over lower third outer part of right thigh; 7) Bruise 11 Cm. X 7 Cm. over middle third and lower third of front part of right thigh; 8) One pair of parallel bruise 5 Cm. X 2 Cm. with a gap of 0.5 Cm. in between two lines placed over outer part of right buttock; 9) Bruise 3 Cm. X 2 Cm. over upper third outer part of right leg; 10) Bruise 10 Cm. X 3 Cm. over middle third outer part of right leg; 11) Bruise 3 Cm. X 2 Cm. over upper third outer part of left leg; 12) Bruise 5 Cm. X 5 Cm. over lower third outer part of left thigh; 13) Bruise 5 Cm. X 2 Cm. over upper third outer part of left thigh; 14) Bruise 8 Cm. X 3 Cm. over outer part of left buttock; 15) Bruise 1 Cm. X 1 Cm. over upper third back part of left forearm; 16) Bruise 5 Cm. X 0.5 Cm. over middle third outer back part of left arm; 17) A part of parallel bruise in area of 8 Cm. X 3 Cm. with a gap of 0.5 Cm. in between two lines placed over upper third outer part of left arm; 18) Bruise 5 Cm. X 0.5 Cm. over upper back part of left side of chest over scapular region; 19) Bruise 4 Cm. X 3 Cm. over lower back part of left side of chest; 20) Bruise 5 Cm. X 2 Cm. over lower back part of right side of abdomen; 21) Bruise 3 Cm. X 1.5 Cm. over upper inner part of right buttock; 22) Bruise 1 Cm. X 0.2 Cm. over upper outer part of right side of chest; 23) Haematoma 5 Cm. X 5 Cm. over right parallel eminence and around it under the scalp; 24) Haematoma 5 Cm. X 3 Cm. over the top of head in mid parallel region under the scalp; 25) Haematoma 2 Cm. X 1 Cm. over the left temporal region under the scalp; 26) Scattered areas of subdural haemorrhage over both the frontal lobes and over right cerebellum.
He opined that death was due to the effect of injuries as stated above. He also noted post mortem injuries being one oblique, non-continuous ligature mark 30 c.m. X 1.9 c.m. all over the neck posteriorly the mark merges with hairy scalp at the nape of the neck being placed 6 cm. below the mid point of chin, 7 cm. Above the supra sternal notch, 1.5 cm. above the thyroid prominence, 5 cm. below right ankle of lower jaw and 4 cm. below the left ankle of lower jaw. The skin over the ligature mark was neither grooved nor parchment, but showed post mortem abrasion at places. On dis-section, sub-cutaneous tissues underneath the ligature mark were found not condensed, nor hardened or glistening with the hyoid bone and thyroid cartilage being intact. He stated that these post mortem injuries were suggestive that the ligature marks were caused after the death of the individual.
P.W.6, P. Singh, was an ASI of Police who was attached to Raina Police Station at that point of time. On 31-12-1985, he received a written complaint and filled up the formal FIR, Ext.1/3. He also proved G.D. Entry lodged by Sasthi Ruidas, which was recorded by ASI, B. R. Biswas, Ext.2. U.D. Case was started over the death of Mongal Kora. S.I., Parameswar Bhattacherjee was endorsed to investigate the case registered by him.
P.W.7, S.I., G. H. Mahapatra deposed that on 31-12-1985, U.D. Case No.14/85 was started over the suicidal death of one Mongal Kora and he held inquest over the dead body of the said person. He came to know, in the course of inquest, about the death of Kalpana Ruidas. He had been to the house of Sasthi Ruidas and O.C., Parameswar Bhattacherjee was with him at that time. Sasthi Ruidas was also with him. The case was endorsed to him for investigation. They found that the dead body of Kalpana Ruidas was hanging in the room. Dead body was brought down. They found multiple injuries on the dead body. He held inquest over the dead body and sent the dead body for Post Mortem Examination. He arrested the accused persons. On his transfer, the investigation was handed over to another police officer, who submitted the charge-sheet.
P.W.8, S.I., B. Prodhan was the second Investigating Officer who submitted the charge-sheet.
From the aforesaid evidence, it is clear that on 31-12-1985, two persons died in the village. Mongal Kora, who appears to be on visiting terms with Kalpana Ruidas, wife of Sasthi Ruidas, committed suicide at his house. Soon thereafter, the body of Kalpana Ruidas was found hanging in the house of Sasthi Ruidas. Her dead body bore a large number of marks of injury. Prosecution had sought to establish that the respondents, being the relations of Mongal Kora, had come to the residence of Sasthi and had assaulted Kalpana causing her death. P.W.2 and 4 were examined as eyewitnesses of such assault. Trial Court disbelieved the said witness and had passed an order of acquittal. It has been argued that P.W.2 is the most natural witness, being the mother-in-law of the victim and her evidence ought not to be disbelieved. We have, therefore, chosen to examine the evidence of P.W.2 and 4 with due circumspection to test whether rejection of their evidence was justified in the factual matrix of the case.
P.W.2 in her deposition had stated that their house comprised of three rooms. Western side room was occupied by P.W.1, her son and the victim Kalpana. On the date of incident, when P.W.1 had gone to police station to lodge complaint against Mongal Kora, who admittedly had committed suicide on that date. There is evidence on record that Mongal Kora had come to the house of P.W.1 at night few days ago as he had visiting terms with Kalpana, the wife of P.W.1 (Sasthi) and over such issue, there was a scuffle between them. Thereafter, it is claimed Mongal had threatened P.W.1 with dire consequences. However, on the date of incident, after Mongal had committed suicide, it is strange as to why P.W.1 had gone to police station to lodge complaint against a dead person, that is, Mongal. This strange conduct of P.W.1 has not been explained away by the prosecution in the instant case.
On the other hand, it is claimed by P.W.2, his mother, that during such absence of P.W.1, the respondents, being the relations of Mongal, had forcibly entered into their house and assaulted the victim with lathi and broom. P.W.2 was also assaulted and ran away from the place. In cross-examination, she admitted that upon her return, she found the rooms were bolted from outside. It is most unnatural that the accused persons, after assaulting the victim, would bolt the doors of the rooms of the house from outside and, thereafter, leave the place of occurrence. The fact that the rooms were bolted from outside gives rise to a reasonable belief that both the P.W.1 and P.W.2 were not present at the place of occurrence and upon P.W. 2 returning to the place of occurrence, she opened the rooms and raised a hue and cry that the victim was haging inside one of the rooms. It is also strange that when P.W.2 fled from the place of occurrence, she neither raised alarm nor did she seek assistance from local people but raised a hue and cry only after unbolting the room and finding the dead body of the victim hanging from the roof of one of the rooms. This unnatural conduct of the witness raised serious doubts as to whether she is a truthful one and had witnessed the assault on the victim. Admittedly, the victim resided with her husband in the western side room of the house. However, her body was found hanging from the eastern side room which was occupied by P.W.2 herself. These aspects of the prosecution are not explained away by the said witness. On the other hand, one cannot rule out the probability that P.W.1 and P.W.2, who were unhappy with the fact that Mongal had visiting terms with the deceased, entertained an inimical attitude towards her. Moreover, the stance of the said witnesses with regard to the said Mongal is contradicting to one another. While P.W.1 admitted that he had gone to the police station to complain about the behaviour of Mongal, P.W.2, in her cross-examination, feigned ignorance to such circumstances relating to Mongal and his subsequent suicide. In this factual backdrop, we are of the view that there is every likelihood that P.W.1 and P.W.2 entertained inimical attitude towards Mongal and the deceased over the fact that they had visiting terms and the trial Judge was, therefore, justified in not coming to a finding of guilt against the respondents (the relatives of Mongal) on the ipse dixit of P.W.2.
Next we come to the evidence of P.W.4, who claims to be a nephew of P.W.1. He deposed that he had seen the incident of assault from the granary when he was thrashing paddy, which was situated on the eastern side of the house of P.W.1. P.W.4, in cross-examination, admitted that the house of P.W.1 is surrounded by a wall. In the face of such admission, it is difficult for us to accept that P.W.4 as an eyewitness, who could have seen the incident of assault inside the house, which is surrounded by a wall, from the granary when thrashing paddy.
Apart from the aforesaid witnesses, who are related to P.W.1 and inimical to the respondents, there is no independent witness supporting the prosecution case of assault of the victim by the respondents. It is a fact that the alleged assault took place in the afternoon in a densely populated village. It is expected that villagers would have seen the respondents going to the house of P.W.1, being armed with lathis and brooms to assault the victim. No independent evidence is led by the prosecution to establish such circumstance in this case. The Investigating Officer admitted to have examined various independent witnesses like Nihar Ranjan Ghosh. None of them were examined during trial giving rise to an adverse inference to the prosecution case which is solely hinged on the partisan and highly improbable evidence of P.W.1 and his relatives.
In the light of the aforesaid discussion, we are in agreement with the trial Court that it is unsafe to come to a finding of guilt against the respondents on the evidence of P.W.2 and P.W.4 in the absence of independent evidence with regard to the involvement of the respondents in the alleged assault of the victim in the face of inimical and hostile relationship between P.W.1 and his mother, on the one hand and Mongal Kora and his relatives, that is, the respondents, on the other hand.
The appeal is, accordingly, dismissed and the judgment and order of acquittal is upheld.
( Shivakant Prasad, J. ) ( Joymalya Bagchi, J. )