Calcutta High Court (Appellete Side)
State Of West Bengal vs Sandip Mukherjee & Anr on 30 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
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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
G.A. 13 of 1999
State of West Bengal
Vs.
Sandip Mukherjee & Anr.
For the appellant/State : Mr. Avishek Sinha, Adv.,
Ms. Eshita Dutta, Adv.
For the respondents : Mr. Arindam Jana, Adv.,
Mr. Soumajit Chatterjee, Adv.
Heard on : January 30, 2018
Judgement on : January 30, 2018
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 23rd December, 1996 passed by the learned Assistant Sessions Judge, Bankura, in Sessions Trial No. 8(1)95 arising out of Sessions Case No, 3(6)94 acquitting the respondents of the charges for commission of offences under Sections 498A/306 of the Indian Penal Code. 2
The prosecution case as alleged against the respondents is to the effect that victim Mallika was married to Bani Mukherjee five years ago and was residing at her matrimonial home with her husband and other in-laws including the respondents, Sandip and Shila, who were the brother-in-law and sister-in-law respectively of the victim. It is further alleged that on the date of the incident i.e. 16.02.1993 there was an altercation between the victim and the respondents and that respondent no. 1, Sandip, had physically assaulted the victim in her belly. Thereafter the victim committed suicide by hanging.
P.W. 1, Manoranjan Bandyopadhyay, father of the victim and de facto complainant herein, was informed by one Mihir Kumar Chakraborty, P.W. 16 herein, that his daughter was ill. Hearing such news he went to the matrimonial home of his daughter and found her lying dead in the kitchen. He was informed by the inmates of the house that his daughter had committed suicide. He suspected that his daughter had been murdered and thereafter hanged with a rope by her neck. Accordingly, he lodged first information report against the respondents alleging that they had subjected his daughter to torture and thereafter murdered her. On his complaint, Sonamukhi Police Station Case No. 11 of 1993 under Sections 498A/302/201 dated 16.02.1993 was registered for investigation. Post mortem report of the victim was obtained and charge- sheet was filed under Sections 498A/306 of the Indian Penal Code. Charges were framed against the respondents under the aforesaid sections of the Indian Penal Code. The respondents pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 22 3 witnesses and exhibited a number of documents. The plea of the respondents was one of innocence and false implication. After analysis of the evidence on record, learned Trial Judge by judgement and order dated 23.12.1996 acquitted the respondents of the charges levelled against them.
Learned Counsel appearing for the appellant/State argues that the learned Trial Judge had failed to consider the evidence of P.Ws. 1,5,11 and 15 who spoke of torture meted out to the victim and that on the date prior to the incident the victim had been assaulted by the respondents. Victim committed suicide being subjected to cruelty within five years of her marriage and in view of Section 113A of the Evidence Act the respondents ought to have been held to be responsible for abetting her suicide. Order of acquittal is, therefore, liable to be set aside.
On the other hand, Mr. Jana, learned Counsel appearing for the respondents submits that evidence with regard to the torture of the victim is general and omnibus in nature. There is no allegation of torture on demand of dowry and the learned Trial Judge, upon analysis of evidence, did not believe the witnesses with regard to the assault on the victim. Hence, the order of acquittal is not liable to be set aside.
I have considered the rival submissions in the light of the evidence on record.
P.W 1, Manoranjan Bandyopadhyay, is the father of the victim and de facto complainant in the instant case. He deposed that the victim was married to Bani Mukherjee on 16th Baisakh, 1395 B.S. according to Hindu 4 rites and customs. After marriage she resided at her matrimonial home with her husband and other in-laws including the respondents. They lived in a joint family. His son-in-law was an employee of ISCO Burnpur. Sister-in-law and brother-in-law used to torture his daughter. In the morning of 16.02.1993 his sister's husband came to their house and informed that his daughter was seriously ill. He came to the matrimonial home with a taxi. He was told that his daughter was under treatment in the hospital. On reaching her matrimonial home he found that there was an assembly of persons. On entering kitchen he found that his daughter was lying dead. None of the family members were at home. Papiya Chatterjee, the niece of Bani Mukherjee, reported to him that there was a quarrel between the victim and the accused persons and they had assaulted her. On that date his son-in-law was at Burnpur. He lodged written complaint with the police station which was written by her sister's husband Madhusudan Mukhopadhyay under my dictation. He proved the written complaint marked as Exhibit-1.
P.W. 11, Shyamal Kanti Banerjee, is the brother of the victim and son of P.W. 1. He deposed that the victim had been married to Bani Mukherjee who was an employee of ISCO Burnpur. After marriage he used to visit the matrimonial home of his elder sister who reported to him that the respondents used to torture her. He received the news of death of his sister in the morning of 16.02.1993. He went to the matrimonial home of his sister along with his parents. He found dead body of his sister was lying in the kitchen. He was told that his sister committed suicide by hanging. He was informed by Naren Das Bandyopadhyay, the 5 family priest of the house, that on 15.02.1993 while he was worshipping the deity the respondents had assaulted her sister and she was even kicked on her belly. Darogababu came at the place of occurrence and prepared the inquest report on the dead body of his elder sister and he signed on the inquest report.
P.W. 15, Manorama Banerjee, mother of the victim, has corroborated the evidence of her husband, P.W. 1.
P.W. 5, Naren Das Banerjee, the priest of the house, has been labelled as the star witness for the prosecution. He deposed that on 15.02.1993 when he was worshipping the deity in the puja room, he heard an exchange of words between Shila and the victim, Mallika. While he was bathing the deity he heard Mallika cried out by saying "master mahasaya amake mere dilek go". Hearing such cry he came out and found Shila, Saktirupa and Mou were on the varandah and they forcibly pushed Sandip and separated him and took Mallika into the room. Then he performed puja and left the house. In cross-examination, he stated that he did not state to the investigating officer that he was bathing the deity and that at time Mallika cried out by saying "master mahasaya amake mere dilek go". He denied that he stated to the investigating officer that he came out of the room and found that Shila, Saktirupa and Mou were on the verandah.
These are the witnesses of fact as other witnesses have not supported the prosecution case.
P.W. 18, Dr. Tarit Kanti Pal, the autopsy surgeon, deposed that the victim died due to asphyxia in case of hanging ante mortem in nature. 6 He, however, did not notice any external injury mark on the body of the victim.
Learned Counsel appearing for the appellant/State contended that the learned Trial Judge ought to have accepted the evidence of P.W. 5 who had seen a skirmish between the victim and the respondents on the date prior to the incident and if his evidence is believed such conduct on the part of the respondents would clearly establish the prosecution case of continuous inhuman torture on the victim by the respondents compelling her to commit suicide.
I have analyzed the evidence of P.W. 5 as a whole in the light of such submission made by the learned Counsel for the appellant/State. Firstly, his evidence suffers from embellishments and/or improvements when compared to her earlier statement tot he police. He had not stated to the police that the victim had shouted "master mahasaya amake mere dilek go". In the absence of such exclamation from the victim there is no justification for P.W. 5 to come out of the puja room and witness the alleged skirmish between the victim on the one hand and the respondents on the other hand. Even if such version of the P.W. 5 is believed and his evidence is read as a whole, I do not find anything in his evidence which shows the victim was assaulted by the respondents on that date. He has merely spoken of a quarrel and skirmish on the verandah between the parties. Hence, the prosecution case of assault on the victim by the respondents on the previous date does not appear to be proved from the evidence of P.W. 5. Versions of P.W. 1,11 and 15 with regard to the assault on the victim on the previous date are hearsay and in the absence 7 of corroboration of such fact by P.W. 5, I am unable to rely on their evidence to come to the conclusion that the victim had been assaulted on the previous day by the respondents. Furthermore, there was no external injury found on the victim by the post mortem doctor apart from the ligature mark which was due to suicidal hanging. Hence, I am inclined to accept the version of the learned Trial Judge that the evidence on record with regard to the assault on the victim on the previous day by the respondents have not been proved beyond reasonable doubt. In the absence of cogent evidence establishing the assault on the victim, the prosecution has to rely on bald statements of the relations of the victim that she was subjected to mental cruelty by the respondents. There is no specific reference as to the nature of mental cruelty meted out to the victim so as to come to a firm conclusion that the alleged cruelty would be of such nature which would fall within the penal ambit of Section 498A of the Indian Penal Code or could be construed to be an act of abetment to suicide. I am not unconscious that the victim housewife committed suicide within five years of her marriage. However, in view of the evidence on record, I am unable to convince myself that she had been physically assaulted on the day prior to the date of occurrence or that she was subjected to cruelty which would be of such nature that it would compel any person of ordinary prudence to commit suicide. Section 113A of the Evidence Act provides that the Court may draw presumption against the accused keeping in mind the attending facts and circumstances of the particular case.
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I find that the allegations relating to cruelty upon the housewife in this case are general and omnibus in nature. There is no demand of dowry. The reason touted for the torture appears to be a mundane one relating to day-to-day household affairs. Role of one of the inmates of the house viz. Piu in the quarrel with the victim has not been explored. She has also not been examined as a witness in the instant case. These facts and circumstances of the instant case militates against the prosecution version and I am of the considered opinion that in the aforesaid factual matrix the trial court rightly declined to draw the statutory presumption under Section 113A of the Evidence Act.
In the light of the aforesaid discussion, the appeal is dismissed and the judgement and order of acquittal is affirmed.
Copy of the judgement along with the Lower Court Records be sent down to the trial court at once.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) sdas 9