Calcutta High Court (Appellete Side)
Sukumar Sahoo & Ors vs State Of West Bengal on 13 February, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 139 of 2005
Sukumar Sahoo & Ors.
Vs.
State of West Bengal
For the appellants : Mr. Sandipan Ganguly .. Sr. Adv.
Mr. Somopriyo Roy Chowdhury .. Adv.
Mr. Khalid Ali .. Adv.
For the State : Mr. Ranabir Roy Chowdhury .. Adv.
Mr. Rudradipto Nandy .. Adv.
Heard on : February 13, 2018
Judgement on : February 13, 2018
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 17th January, 2005 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Contai, Purba Medinipur in Sessions Trial No. VII/March/2004 convicting the appellants for commission of offences punishable under Sections 302/498A of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- each, in default, to suffer further rigorous imprisonment for one year for the offence punishable under Section 302 IPC and to suffer rigorous imprisonment for three years and to pay fine of Rs.3,000/- each, in default, to suffer further rigorous imprisonment for one year for the offence punishable under Section 498A IPC; both the sentences to run concurrently.
The prosecution case as alleged against the appellants is to the effect that the appellant no.1, Sukumar Sahoo was married to the victim, Krishna Sahoo on 23rd November, 2001 according to Hindu rites and customs. At the time of marriage various articles including cash were given as dowry. After the marriage the victim started residing at her matrimonial home with the appellants being her husband, maternal uncle-in-law and mother-in-law. The victim was subjected to cruelty including physical assault by the appellants on demands of dowry. Appellants demanded money for the beetel leaf business of her husband. Unable to bear such torture the victim took refuge at her parental home. In the meantime a child was born to the couple. Negotiations were held and the victim returned to her matrimonial home. Torture upon the victim continued and the victim used to report such torture to her relations including her mother namely, Kiran Bala Sahoo (PW6), the de- facto complainant in the instant case. Due to such torture the victim again took refuge at her parental home. She was pregnant at that time. Few days prior to her death her husband took her back to a rented apartment let out by P.W. 7. On 22nd November, 2001 at about 10:00 A.M. the de-facto complainant received news about the death of her daughter, Krishna Sahoo. After coming to the rented apartment she found her daughter lying dead in a pool of blood on the embankment of a tank adjoining the said room. She suspected that the victim had been murdered by the appellants. Written complaint was lodged at Ramnagar Police Station resulting in Ramnagar P.S. Case No. 95 of 2001 dated 23rd November, 2001 under Sections 498A/304B IPC. In conclusion of investigation, charge-sheet was filed under Sections 498A/304B IPC against the appellants. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track, 1st Court, Contai, Purba Medinipur for trial and disposal. Charges were framed under Sections 498A/302/34 IPC. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order dated 17th January, 2005 convicted and sentenced the appellants, as aforesaid.
Mr. Sandipan Ganguly, learned senior advocate, appearing for the appellants argued that the evidence on record does not establish offence of murder against the appellants. There is no evidence that the appellants were present at the place of occurrence when the incident happened. On the other hand, PW7, in cross-examination stated that the appellant no.1 used to go to the market on every Wednesday and Saturday and returned on the next day. PW6 also did not find the appellants at the place of occurrence when she visited the rented apartment occupied by her daughter. In support of his contention, he relied on (2004) 11 SCC 282 [Dasari Siva Prasad Reddy vs. Public Prosecutor, High Court of A.P.] and (2009) 12 SCC 588 [Sohel Mehaboob Shaikh vs. State of Maharashtra]. It is also submitted that the examination of the appellants under Section 313 of the Code of Criminal Procedure was not conducted properly and all incriminating circumstances had not been put to them for their explanation. He accordingly, prayed for acquittal of the appellants.
On the other hand, Mr. Ranabir Roy Chowdhury, learned advocate along with Mr. Rudradipto Nandy, learned advocate appearing for the State argued that there is evidence on record that the victim was subjected to torture by the appellants over demands of dowry. The victim withdrew from her matrimonial home to protect herself and salishies were held. Finally, appellant no.1 and the victim started residing separately in a rented apartment. Few days before the incident the appellant no. 1 had taken the victim to the rented apartment. There are ample evidence that the victim and appellant no.1 resided in the rented apartment on the date of the incident and her mutilated dead body was found on the embankment of a tank infront of the said apartment. No alibi has been proved by appellant no.1 in the instant case. Accordingly, the appeal is liable to be dismissed.
P.W. 6 is the mother of the victim and the de facto complainant in the instant case. She deposed that the victim was married to appellant no. 1. At the time of marriage they gave Rs.5,000/- and dowry articles and ornaments amounting to Rs.35,000/-. In all, dowries to the tune of Rs.40,000/- were given as per demand of appellant nos. 1 and 2. After the marriage the victim started residing at the matrimonial home. A female child was born from the wedlock. Whenever she went to visit her daughter she was assaulted by the accused persons. Victim was not provided with adequate food and was assaulted. Due to such cruelty, she was forced to take refuge at her parental home where she complained that she was being beaten by the accused persons. The accused persons had demanded further money for the betel business of the husband. There were negotiations at the panchayat level for the settlement of the matrimonial dispute. Salishes also took place at Ramnagar Police Station. After reconciliation the victim went back to her matrimonial home. She was again beaten and driven out of her matrimonial home due to non-payment of dowry. Three to four months later the appellant no. 1 came to their house and assured to keep the victim in a rented apartment. Thereafter, the couple took residence in the rented house of Nani Gopal Dey at Talgachari. The house was fifteen minutes away from her house. Three to four days prior to the incident, the victim had been taken to the rented house. Whenever P.W. 1 went to the rented apartment, she found that the victim was weeping. In the night preceding the death of the victim she had been to the house of her daughter. Accused Sukumar and Santibala went away when she reached the place of occurrence. She was there about two hours. She wanted to meet Sukumar but failed. The victim stated that she did not wish to reside in the rented house with her husband. She was nine months pregnant at that time. On the next day Nani Gopal Dey informed her that her daughter was lying on the embankment of the tank. She rushed to the place of occurrence and saw that the victim was lying there in a pool of blood. Marks of injuries were found on the neck, breast and other portions of the body of the victim. Blood was oozing out from her uterus. There were also injury marks in her belly. She signed on the inquest report. She found the rented house was under lock and key. She could not find the appellant no. 1. Body of the victim was taken to Ramnagar Police Station. Thereafter, the victim was cremated. She lodged F.I.R. which was written by Sudip Das. She proved the complaint marked as exhibit - 3. Sukumar remained in Ramnagar save and except for business purpose. There is a tubewell situated in the rented house. There is a toilet in the rented house. Victim Krishna knew how to swim. It was reported by Nani Gopal Dey that the victim was floating in the tank. She was taken to the spot. She identified the wearing apparels of her daughter.
P.Ws 8 and 10 are the uncles of the victim. They have corroborated the evidence of P.W. 6.
P.W. 7, Nani Gopal Dey, is the landlord of the tenanted apartment where the couple last resided. He stated that he knew Sukumar Sahoo but he did not know the matrimonial uncle and mother of Sukumar. Sukumar was a tenant under him. He knew Krishna Sahoo, wife of Sukumar. The victim Krishna Sahoo was pregnant. Krishna and her husband were his tenants over five days. Krishna died in November, 2001. He found the dead body of the victim floated on the tank at about 9.30a.m. He reported the incident to Ramnagar Police Station and to the villagers. Police and B.D.O. came to the place of occurrence. The victim was recovered by the police and B.D.O. from the tank. B.D.O. prepared the inquest report. There were injuries on the various parts of the body of the victim. The rented room was under lock and key. He signed on the inquest report marked as exhibit-4. Police opened the door by breaking the lock. He signed on the seizure list marked as exhibit-6. He was declared hostile. In cross-examination, he stated that it had been reported by Sukumar that he deals in betel leaves by purchasing from outside. He along with female inmates resided in the room. Accused Sukumar Sahoo used to go Kudi market on each and every Wednesday and Saturday afternoon and used to return on the following day.
P.W. 9, Susanta Chakraborty, is the Executive Magistrate who conducted inquest over the dead body of the victim. He proved the inquest report marked as exhibit-2/A. P.W. 12, Suman Kalyan Maity, is a co-villager who was informed that the dead body of the tenant of Nani Gopal Dey was found floating in the tank at about 8 a.m. When he arrived at the place of occurrence and body of the victim was recovered from the tank. He advised Nani Gopal to inform the Ramnagar Police Station. He was present at the time of inquest.
P.W. 11, Prabir Kumar Chakraborty, is the post mortem doctor. He found the following injuries on the victim:
One wound involving areola with partial removal below right breast half inch in diametre. Below left side of chin wound one inch in diameter, left interior side of throat wound two inch in diameter. One wound involving left auriculer region with removal of left ear removal labule. Right side of the back of throat bruise 3"/ one fourth inch, upper right thigh wound is one inch in diameter. Lower abdomen wound 7 and half inch in diameter and other wound 2"/ half inch, tips of toes of right leg having wound half inch in diameter, on root or left great toe wound 2"/ 1"and at tip of other toes of right leg wound is half inch in diameter, behind left leg upper part of wound 3"/ 1", behind right leg upper part wound one inch/half inch. He opined that death was due to drowning and injuries stated above are anti-mortem, homicidal in nature as confirmed by circumstances. Uterus was full with pregnancy of male foetus. In response to queries put by the investigating agency he stated that injuries were one of the causes of death. He also replied that the congestion in the lungs was ante mortem in nature. He clarified his opinion by stating that injuries may be the sole reason for death. The types of injuries found on the areola could not be caused by fishes. It is rare for a person who knew swimming to drown.
P.W. 14, Gautam Bhattacharjee, received the written complaint from P.W. 6 and lodged F.I.R.
P.W. 15, Anath Bandhu Pati, is the investigating officer of the case. He visited the place of occurrence and prepared the sketch map with index marked as exhibit-11 series. He arrested the accused persons. He seized alamats under a seizure list marked as exhibit-1. He seized padlock with key from the rented house under the seizure list marked as exhibit-12. He obtained post mortem report and submitted charge-sheet.
From the evidence on record it appears that the life of Krishna, the victim, at the matrimonial home was not a peaceful one. At the time of marriage, upon demand made by the appellant nos. 1 and 2, dowry items along with money were given by her mother (P.W. 6). Thereafter the victim started residing at her matrimonial home. She was subjected to cruelty including physical assault for further demands of dowry. She withdrew from her matrimonial home and took refuge at her parental home. Salishes were held and thereafter she returned to her matrimonial home. She was again tortured and she took refuge at her parental home. Thereafter appellant no. 1 brought her back from her parental home to a rented apartment and the couple started residing there. P.W. 6 visited the victim at her rented apartment where she found her unhappy. Krishna was nine months pregnant at that time. On the evening preceding her death, P.W. 6 had gone to the tenanted apartment and found appellant nos. 1 and 3 going away as she reached there. She waited for two hours to meet appellant no. 1 but he did not return. On the next morning, she was informed that the dead body of her daughter was found on the embankment of the pond in front of the tenanted house. She rushed to the place of occurrence and found that her daughter was lying on the embankment of the pond with injuries on her person. It is also noted that the room was under lock and key from outside. Police opened the door by breaking the padlock. Police and B.D.O. came to the place of occurrence. P.W. 9 held the inquest over the dead body and the body was sent for post mortem examination by P.W.
11. Post mortem doctor found various injuries on the neck, breast and other parts of the body of the victim. He opined that death was homicidal due to drowning and the ante mortem injuries on the victim.
The aforesaid circumstances leave no doubt in one's mind that the victim had been subjected to inhuman torture and murdered on the day of the incident. It has been argued that there is no direct evidence that the appellants were present at the place of occurrence and, therefore, they cannot be held responsible for the murder of the housewife. It is true that there is no evidence that the appellant nos. 2 and 3 used to live with the couple at the rented apartment of P.W. 7. However, there are ample evidence on record that the appellant no. 1 used to reside with his wife in the rented house. Soon after the marriage the victim had been subjected to torture and had repeatedly taken refuge at her parental home. Salishes were held over such torture in the village and few days before the death of the victim appellant no. 1 had taken the rented apartment from P.W. 7 and brought back the victim to the said accommodation. In the evening preceding the death of the victim, P.W. 6 had gone to the said house and seen appellant nos. 1 and 2 going away from the spot. She waited for two hours to meet the appellant no. 1 but he remained elusive. On the next day, she was informed that her daughter had dead. It has been argued that the appellant no. 1 used to go to the town for his business in every Wednesday and Saturday and returned on the next day. Hence, the appellant no. 1 was not present in the rented apartment on the fateful night.
I am unable to accept such argument advanced on behalf of the appellants. P.W. 7 is the landlord of the house where the couple was residing for a few days. It is difficult to understand as to how P.W. 7, a hostile witness, was aware of the conduct of appellant no. 1 of going out of the town on every Wednesday and Saturday when the tenancy in the apartment had been a couple of days ago. That apart, no evidence has been led by the appellant no. 1 to show that on the fateful day he had gone out of the town for business purpose. On the other hand, in the evening preceding the death of his wife, when P.W. 6 came to the rented apartment she had seen appellant nos. 1 and 3 pass by as soon as she arrived there. This fact clearly improbabilises the defence plea that the appellant no.1 had gone out of the town for business purpose and was not present in his rented apartment in the night when the victim was murdered. Evidence has also come on record that the tenanted apartment was under lock and key when the mutilated body of the victim was found in the pond in front of the house. Medical evidence clearly rules out a case of accidental or suicidal death of the victim. Victim had been murdered on the fateful night. If the death of the victim was the deed of a stranger it is impossible that the room would be locked from outside. On the other hand, the fact that the room was locked from outside and the body of the victim was found with innumerable injuries in front of the tank adjacent to the house unerringly points to the fact that the husband had brutally assaulted the victim and after throwing her body in the pond had locked the tenanted premises and ran away.
Reliance on the cited authorities in this regard is misplaced. In (2004) 11 SCC 282(supra) time of death of the victim had not been established beyond reasonable doubt. In this backdrop the apex court held the circumstance that the victim and the accused were last seen together was irrelevant and conviction could not be founded on the ground that the plea of alibi the accused had failed. In the present case appellant no. 1 and the victim were residing together in the tenanted apartment. P.W 6 had seen that the appellant nos. 1 and 3 move away when she arrived at the said apartment on the fateful evening. Dead body of the victim was found in the pond in front of the rented apartment with multiple injuries which were homicidal in nature. The tenanted room of appellant no.1 was locked from outside and he had run away. No evidence was led by the appellant no. 1 to probabilise his absence from the place of occurrence. In this factual backdrop, I am of the opinion that the aforesaid authority is distinguishable on the facts and is of little assistance to the appellants. The fact that appellant no.1 was found moving away from the house in the evening prior to the death of the victim when P.W. 6 arrived there rules out any possibility of his going out of town for business purposes on the fateful day. Reliance on (2009) 12 SCC 588(supra) is also not apposite. In the said report there is no evidence that the appellants had been seen in and around the place of occurrence immediately prior to the incident. In this case, P.W 6 categorically stated that appellant nos. 1 and 3 moved away from the house when she had arrived in the said apartment on the fateful evening.
I find that the appellant nos. 2 and 3 did not reside with the victim at the place of occurrence. P.W 7 had failed to recognise appellant nos. 2 and 3. He, however, deposed that appellant no. 1 stayed with the victim in the rented apartment. In view of the aforesaid facts, I am inclined to extend the benefit of doubt to appellant nos. 2 and 3 with regard to any role played by them in the murder of the victim. However, I find ample evidence against them in subjecting the victim to cruelty and physical torture on further demands of dowry which compelled the victim repeatedly to take refuge at her parental home and be accommodated in a separate rented apartment along with appellant no. 1 where she was brutally murdered by the latter.
With regard to the alleged defect in the examination of the appellants under Section 313 of the Code of Criminal Procedure, I note that such examination had not caused prejudice to the appellants during trial. The incriminating circumstances had been substantially placed to the appellants. It is true that the circumstances ought to have been posed to the appellants in seriatim but such irregularity had not prejudiced them as they were fully aware of the incriminating circumstances relied against them and put to them during such examination.
In the light of the aforesaid discussion, conviction and sentence of the appellant no. 1 is upheld.
Conviction of the appellant nos. 2 and 3 for the offence punishable under sections 498A/34 IPC is upheld.
Coming to the issue of sentence, I find that appellant nos.2 and 3 are of advanced age. However, in view of the gravity of the offence I am not inclined to extend the benefit of probation to them. However, I reduce the substantive sentence imposed on them and direct that they shall suffer rigorous imprisonment for one year each and to pay a fine of Rs.3,000/- each, in default, to suffer further rigorous imprisonment for one year for the offence punishable under Section 498A/34 of the Indian Penal Code.
Conviction and sentence of appellant nos. 2 and 3 for the offence punishable under section 302/34 IPC is set aside. Bail bonds of appellant nos. 2 and 3 are cancelled and they are directed to surrender before the trial court forthwith and to serve out their sentences in accordance with law failing which the trial court shall take appropriate coercive measures to execute the sentence.
The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 of the Code of Criminal Procedure.
Appeal is allowed in part.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree (Rajarshi Bharadwaj, J.) sdas/akd/tamal