1 Item no. 230 RP/Aloke/AB IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Appellate Side Present : The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Rajarshi Bharadwaj C.R.A. 391 of 2000 ARUN SAHU & ORS. Versus STATE OF WEST BENGAL For the appellant : Mr. Milon Mukherjee, Sr. Adv., Mr. Biswajit Manna, Adv. Mr. Rahul Ganguly, Adv. Mr. D. Dutta, Adv. For the State : Mr. N. Ahmed, Adv. Ms. A. Gaur, Adv. Heard on : 25.01.2018 Judgement on : 25.01.2018 Joymalya Bagchi, J.: The appeal is directed against the judgement and order dated 23.11.2000 passed by the learned Additional Sessions Judge, 6th Court, Midnapore in Sessions Trial Case No.XXV/May/1997 convicting the appellant no.1 for commission of offence punishable under sections 498A/302/201 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years 2 for the offence punishable under sections 498A of the Indian Penal Code, to suffer rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for three years for the offence punishable under Section 201 of the Indian Penal Code and convicting the appellants no.2, 3 and 4 for the offence punishable under Section 201/34 of the Indian Penal Code and sentencing the appellants no.2 and 3 to pay a fine of Rs.5000/- each, in default to suffer rigorous imprisonment for two years each and sentencing appellant no.4 to suffer rigorous imprisonment for three years for the aforesaid offence. All the sentences to run concurrently. At the outset this Court was informed that appellant no. 2, namely, Girish Chandra Sahu has expired. Hence, the appeal so far as it relates to appellant no. 2 is noted to have abated. The prosecution case, as alleged, against the appellants is to the effect that the victim Kajal Rani Sahu was married to Arun Sahu, the appellant no. 1 herein, according to Hindu rites and customs. A sum of Rs.55,000/- was spent at the time of marriage. Soon after the marriage the appellants demanded further dowry and subjected the victim mental and physical torture. She was not provided proper food and clothing. In the meantime a girl child was born to the couple. In view of the future of the child the victim tolerated ill treatment. However, ill-treatment upon the victim increased and efforts were made by her brother (PW 1) and father (PW 5) to amicably resolve the dispute but in vain. The 3 appellant no.1 demanded a sum of Rs.20,000/- as dowry for his business and since the said amount was not paid torture increased on the victim. On 27.7.1995
a person from Damuria village, the matrimonial home of the victim, informed PW 1 that the husband and other in-laws of the victim had seriously beaten her in the night of 26.07.1995 and as a result she died. The miscreants had spread rumors that the victim was ill. PW 1 went to enquire of her sister at her matrimonial home but the appellants did not allow him to enter the house. On 28th July, 1995 PW 1 lodged complaint which was registered as Ramnagar P.S. U.D. Case No.45/95 dt. 27.7.1995 under Section 498A/302/201 of the Indian Penal Code for investigation.
In conclusion of investigation, charge sheet was filed against the appellants under section 498A/302/201/34 of the Indian Penal Code and the case was committed to the court of sessions and transferred to the Court of the learned Additional Sessions Judge, 6th Court, Midnapore for trial and disposal. Charges were framed under sections 498A/302/201/34 of the Indian Penal Code against the appellants.
The appellants pleaded not guilty and claimed to be tried. Prosecution examined 13 witnesses and exhibited a number of documents to prove its case. It was the specific defence of the appellants that there was domestic quarrel in the matrimonial home of the victim as the latter had ill- treated her minor child and she had impetuously committed suicide. Appellants, however, did not lead any evidence to probabilise such defence.
In conclusion of trial, the trial judge by judgment and order dated 22.11.2000 and 23.11.2000 convicted and sentenced the appellants, as aforesaid.
Mr. Mukherjee, learned senior counsel appearing for the appellants submitted that there is inordinate delay in lodging the first information report. Inquest report speaks of an altercation between the victim and her in-laws over the ill-treatment of her minor child. There is no reference to torture upon her in connection with demands of dowry in the inquest report. He submitted that the investigating officer interrogated the prosecution witnesses belatedly and their evidence suffers from gross contradictions as well as embellishments.
It is also argued that the evidence against the appellant no. 1 with regard to the torture relating to dowry is similar to that against the other appellants who have been acquitted from the said charge. He submitted that the prosecution evidence does not establish that the appellant was present at the place of occurrence and the evidence of autopsy surgeon, P.W. 11 does not unequivocally prove a case of homicidal death beyond doubt. He relied on various authorities and prayed for acquittal of the appellants.
On the other hand, Mr. Ahmed with Ms. Gour, learned advocates appearing for the State argued that that the evidence of P.W. 11 clearly established that the victim was assaulted and thereafter strangulated. The incident occurred at the matrimonial home and no alibi was pleaded and proved by the appellants during trial that he was not present at the matrimonial home at the time of the incident. On the other hand, they claimed that the victim died due to suicidal hanging which is incompatible with the medical evidence. False plea of suicidal hanging clearly militates against the innocence of the appellants and the appeal is liable to the dismissed. It is also submitted that there are ample evidence that the appellant no. 1 had demanded Rs.20,000/- for his business and the victim was tortured by him on such score. Hence, it cannot be said that the evidence of torture over demands of dowry so far as appellant no. 1 is concerned the same as the other accused persons who were acquitted of the said charge. The appeal is, therefore, liable to be dismissed.
I have considered the rival submissions in the light of the evidence on record.
There is no dispute that the victim-housewife died at her matrimonial home. While the prosecution contended that she suffered homicidal death, learned senior counsel for the appellants strongly argued that the cause of death of the victim has not been proved beyond reasonable doubt and it may be a case of suicidal hanging.
P.W. 11 is the autopsy surgeon who conducted the post mortem over the dead body of the victim on 28.07.1995. He deposed that he found one heamatoma over right side of the face measuring 2″ x 1″ x 1/10″, mark of ligature on neck transversely circular, continuous was also noted low down in the neck below laryngeal prominence. Both the lungs were found deeply congested on section, existence of dark froth fluid blood was noted, swollen forced out of the mouth and bitten by teeth was found and acid smell was detected in the stomach. According to the autopsy surgeon, the cause of death was homicidal in nature due to cardio respiratory failure following asphyxia due to strangulation which is ante mortem in nature and due to shock and haemorrhage of the above injuries. He proved the post mortem report exbt.-5.
He was cross-examined at length. In his cross-examination, he reiterated that the cause of death and the injuries were noted by him and no pressure or threat had been exerted on him by any political party while preparing the report. He, however, admitted that he did not take photography of the dead body nor took the weight and height of the victim. He did not mention the facial condition of the deceased. He did not mention the condition of the eyes. He clarified that it is hard to say in a case of suicidal hanging the eyes would be partly closed. He opined that in a case of homicidal hanging there shall be some injury on the person of the victim. He clarified that a hanging body would not suffer an injury like haematoma if it dashed with the wall. He denied that the death of the victim was not homicidal. Analysis of this evidence shows that P.W. 11 did not waver from his firm opinion that the deceased suffered homicidal death due to strangulation and shock and haemorrhage due to the above noted injuries.
Learned senior counsel sought to rebut such opinion of the autopsy surgeon by relying medical authorities. He relied on Taylor’s Principles and Practice of Medical Jurisprudence 13th Edition and submitted that spots are usually seen in the skin of the eyelids, face, scalp and sometime larger haemorrhages are present in the eyes in the case of strangulation (see page 305). He also relied on (2016) 10 SCC 519 (Jose Alias Pappachan vs. Sub-Inspector of Police, Koyilandy & Anr.) and (2010) 15 SCC 25 (Sonali Mukherjee vs. Union of India) in support of his contention that benefit of doubt ought to go to the accused if the cause of death is doubtful. He also referred to the inquest report (exbt. 2) prepared by P.W. 9 to bolster his argument.
On examining the inquest report it appears that P.W. 9 noted that a deep wound on the throat of the deceased caused by a rope. He also noted that traces of urination by the victim. It is true that there is a reference to a quarrel between the victim and her in laws over the ill-treatment upon her minor daughter. However, there is no reference in the report as to the source from where P.W. 9 had derived knowledge about such incident. No question was posed to the said witness by the defence to elicit the source of such information. The sole signatory to the inquest report, Khukumoni Das, a member of the local panchayet, was examined as P. W. 8 and she is also completely silent as to the events occurring on the fateful day leading to the death of the victim.
It is trite law that the events leading to the death of the victim as mentioned in the inquest report are hearsay evidence and cannot be relied upon in the absence of direct evidence proving such facts. Statements recorded in the course of inquest may only be used for contradiction made under Section 145 of the Evidence Act (see Malkait Singh vs. State of Punjab, (1991) 4 SCC 341 (Para 12). No legally admissible evidence is forth coming in this case to establish the fact that there was a quarrel between the victim and her in-laws over the ill- treatment of her daughter immediately prior to the death of the victim. Hence, I conclude that there is no evidence on record probabilising the defence version of a quarrel in the matrimonial home over the ill treatment of the minor daughter immediately prior to her death.
Coming to the injuries noted by P.W. 11 in the p.m. report, it appears that the doctor found a circular and continuous ligature mark low down in the neck of the victim below the laryngeal prominence and opined that she died due to strangulation. Nothing has been placed on record to controvert such conclusion of the autopsy surgeon. On the other hand, inquest report corroborates the aforesaid ligature mark which is indicative of homicidal strangulation. That apart, the doctor also noted that the presence of dark frothing fluid blood which is indicative of strangulation as would appear from the medical authority relied by the appellants themselves. At page 305 of Taylor’s (supra), it is opined that exuding of “frothy blood tinged fluid” from the nose and mouth is an external characteristic of manual strangulation. That apart, the author has clarified that the presence of Tardieu’s marks on the eyelids and face are not in themselves pathognomic of manual strngulation. Hence, I am unable to accept the submission of the learned senior counsel that the failure to note the said signs in the p.m. report would improbabilise a case of homicidal strangulation.
On the other hand, hematoma was found on the check of the victim. Such injury establishes a case of assault followed by manual strangulation. P.W. 11 has clearly ruled out such injury could be caused accidentally due to dashing of the body against a wall as suggested by the defence. Hence, the conclusive opinion of homicidal death as noted by P.W. 11 does not suffer from any improbability or contradiction and I find no reason to disbelieve the same.
In (2016) 10 SCC 519 para 30 (Jose alias Pappachan vs. Sub-Inspector of Police, Koyilandy & Anr.) the autopsy surgeon admitted that he could not say that whether the victim died due to suicidal or homicidal hanging. In view of the prevaricating stance of the autopsy surgeon, the Apex Court extended the benefit of the doubt to the appellant. In the present case I find that P.W. 11 has categorically denied the suggestion that the death of the victim was not homicidal in nature and defence has not been able to make any doubt to such well- reasoned conclusion of the medical expert. In (2010) 15 SCC 25 (Sonali Mukherjee vs. Union of India) the prosecution had relied on the circumstance that the accused/wife had forcibly compelled the victim/husband to consume barbiturate tablets resulting in his death. The Apex Court held it was not possible for the lady alone to over power her husband and forcibly administer tablets resulting in his death. In the present case, no such improbability in the prosecution case has been elicited by the defence. The victim had been mercilessly assaulted resulted in a haematoma on her face and thereafter manually strangulated. It cannot be said that her husband could not have perpetrated such assault on her. Hence, the aforesaid report is factually distinguishable from the instant case and cannot come to the aid of the appellants.
In view of the aforesaid discussion, I hold that in the facts and circumstances of the case the opinion of P.W. 11 with regard to the cause of death is mostly reliable and there is no escape from the conclusion that the victim had suffered homicidal death at her matrimonial home on the fateful day.
The next question which crops up is who had killed the victim? In this regard Mr. Mukherjee, learned senior counsel has submitted that there is no direct evidence that the appellant no. 1 was present at the house. He also submitted that other accused persons who were alleged to be present in the house were acquitted of the charge of murder. In this regard he has relied on (2009) 12 SCC 58 (Sohel Mehaboob Shaikh vs. State of Maharashtra).
P.W. 1 is the brother of the victim and the de facto complainant in the instant case. He deposed that the victim was married to appellant no. 1 in the month of Falgun, 1989. They spent Rs.55,000/- for the marriage inclusive of dowry given at the time of marriage. The victim was happy at her matrimonial home for a year. Thereafter, the accused persons demanded Rs.20,000/- for running the business of the appellant no. 1. As they expressed inability to pay the said amount, she was tortured mentally and physically. She was not given sufficient food. The victim informed such incident to him. He and his father went to the house to the matrimonial home of the victim and requested the accused persons not to torture her. On 27.07.1995 a person from the village of the accused persons came to their house and informed that victim had been severely assaulted and hanged with a rope. They reached to the house of the accused persons but they were not allowed to enter the entry the house. They went to the police station on the same day but police told them to come on the next day. On the next day they lodged first information report. He said that it was written by some other person as per her instruction and he proved the FIR. He deposed that his sister gave birth to a daughter who was three years old at the time of her death.
In cross-examination, he stated that the mother of Arun was aged and his brother was a heard patient. He had not informed the incident to police or panchayat. The daughter of the couple was residing with the accused persons after the incident.
P.W. 3 is the wife of P.W. 1. She has corroborated the evidence of her husband. In cross-examination she stated that they were willing to pay Rs.20,000/- as demanded by appellant no. 1 but due to financial stringency they were unable to do so. She stated that she was examined after a month of the incident.
P.W. 5 is the father of the victim. He deposed that the victim was married to appellant no. 1 on 22nd Falgun, 1989. They spent Rs.55,000/- for the marriage inclusive of the value of the dowry given in marriage. After some time his daughter was subjected to torture on demand of Rs.20,000/- by her husband for starting a business. He had gone to the house of the accused persons and requested them not to torture the victim. On 27.07.1995 he heard that his daughter had died at the matrimonial home. He and his son (P.W. 1) went to the house of the accused persons but they did not allow then to enter the house. They went to the police station but police asked them to come on the next day.
P.W. 2 is a resident of village Akhna which is situated about one kilometer from the house of P.W. 1. She stated that appellant no. 1 was married to the victim. She was attached to a Mahila Sangathan. The victim reported to her that she was subjected to torture for bringing a lumpsum amount for starting business. On 20.07.1995 she last reported about the torture. On 27.07.1995 she came to learn from the father of the victim that she had expired. Father of the victim told her that she had been killed by the accused persons.
P.W. 4 is a neighbour of P.W. 5, the father of the victim. The evidence of other prosecution witnesses relating to the torture on the victim over demand of Rs.20,000/- by the appellant no. 1 for starting his business.
P.W. 6 is the priest who solemnised the marriage between the victim and the appellant no. 1. He also deposed with regard to the torture upon the victim over demands of dowry.
P.W. 8 is a member of the local panchayat. She signed on the inquest report marked as exbt. 2/1. She stated that Rajlaxmi is the widowed sister of appellant no. 2. She had visiting terms with appellant no. 2. In cross- examination she stated that the relationship between the victim and the accused persons was cordial. Appellant no. 2 is her brother by village courtesy.
P.W. 9 is the police officer who held inquest and proved the inquest report which was marked as exbt. 2.
P.Ws. 10 and 13 are the investigating officers in the instant case. From the evidence on record it appears that the appellant no. 1 was married to the victim in 1989. A sum of Rs.55,0000/- was spent for the marriage ceremony inclusive of dowry paid to the appellants. After some time, a demand ofRs.20,000/- was made by appellant no. 2 for starting a business. Over such demand it is claimed that appellants had subjected the victim to torture. The evidence of torture on the victim has not only come from the mouths of her relations but also independent witnesses like P.Ws. 2 and 4. It is argued that their evidence suffers from contradictions and/or improbabilities. It is also submitted that while other accused persons were acquitted on the selfsame charge appellant no. 2 was convicted of the said offence. There may be minor contradictions and/or variations in the versions of the prosecution witnesses with regard to the torture over demands of dowry. However, such minor variations and/or contradictions in their depositions are natural as witnesses would narrate the incidents as per their individual capacities of recollection and reproduction and not in a parrot like manner. The crux of he prosecution case of torture on the house wife for non-payment of Rs.20,000/- as demanded by appellant no. 1, her husband, to start his business is consistently narrated by the witnesses. Hence, I find no reason to disbelieve their evidence on this score due to minor variations or embellishments.
The, learned trial Judge had succinctly analysed their evidence and correctly lead down a distinction between the role of appellant no. 1, her husband in torturing her for non-payment of his demand of Rs.20,000/- for starting a business qua the other accused persons. The demand of Rs.20,000/- was made to appellant no. 1 as should transpire from the evidence of P.W. 3. The demand was for the purpose of set up of his business and due to non-fulfilment of such demand the victim was tortured by the said appellant. There may be some exaggeration on the part of the prosecution witnesses to rope in the other accused persons who are the in-laws of the victim, however, the trial Judge by an effective shifting of the prosecution evidence has been able to separate the chaff from the grain and come to a finding that it was the husband, that is, appellant no. 1 who had demanded the aforesaid sum for starting a business and subjected to his wife to torture on non-fulfilment of such demand.
It has been argued that the allegations of torture on demand of dowry has not been reflected in the inquest report.
It must also be borne in mind that the inquest was conducted behind the back of the relations of the victim or other prosecution witnesses apart from P.W.
8. P.W. 8 is a panchayat member and it has come from the evidence of P.W. 1 that he had not informed the local panchayat of the incidents of torture. Naturally, P.W. 8 was unable to recount the torture on the victim over demands of dowry and owing to her familiarity with the accused persons, one of whom she referred to as ‘brother by village courtesy’, she claimed that there was cordial relationship in the family. Furthermore, P.W. 8 was unaware of the circumstances leading to the death of the victim and is completely silent on such score. Hence, I am of the opinion that the evidence of the prosecution witnesses with regard to the torture of the victim by appellant no. 1 over demand of Rs.20,000/- for starting his business cannot be disbelieved on the score that such facts did not find place in the inquest report.
Coming to the date of occurrence, it is established that the victim suffered homicidal death at her matrimonial home. It has been argued that there is no evidence to show that the appellant no.1 was present at the place of occurrence. No such plea, however, was raised by appellant no.1 in the course of the trial. On the other hand, he claimed that the victim committed suicide due to a quarrel over ill-treatment to her minor child. I have noted that no evidence is forthcoming with regard to such quarrel or any ill-treatment of the minor child, as alleged. On the other hand, the medical evidence clearly establishes that the victim had suffered homicidal death and the plea of suicidal death appears to be a false plea raised by the appellant no.1 during trial.
It is trite law that conduct of parties are to be assessed on the anvil of broad probabilities of normal human conduct. Presence of the husband at the matrimonial home with his wife is most natural and the assessment of prosecution evidence in that perspective persuades me to conclude that appellant no. 1 was present with the victim when she suffered homicidal death. Such circumstance has not been improbabilised by the defence by raising an alibi.
It is pertinent to note that any plea of alibi is to be proved by the defence and no such plea of alibi was ever raised by appellant no.1 in the course of trial. On the other hand, on the day of the incident, P.W.1 went to the residence of the appellants to enquire about the death of his sister, when the appellants drove him away. This fact further probabilizes their presence at the place of occurrence and improbabilizes the plea that the appellants were not present at the place of occurrence at the time of the alleged incident.
In (2009) 12 SCC 588 (Sohel Mehaboob Shaikh vs. State of Maharashtra) the Apex Court had acquitted the husband as the conclusion of guilt was arrived at on the basis of surmises and conjectures. On the other hand, in the instant case there is clear evidence that the victim had suffered homicidal death at her matrimonial home due to strangulation. Apart from the mark of strangulation, a haematoma was found on her cheek which is a clear proof of assault on her. P.W.11, autopsy surgeon denied the suggestion that such injury could have been accidentally caused. On the other hand, such injury is the evidence of physical assault on the victim, which was followed by manual strangulation.
It has been established from the evidence on record that the appellant no.1 had demanded money from the victim for starting his business. Such demand not being fulfilled, he subjected her to assault on the fateful day and then strangulated her to death. The incident occurred at the matrimonial home of the victim and soon after the incident when P.W.1 went to there, he was driven away by the appellants. No plea of alibi was raised by the appellant no.1 during trial. On the other hand, he raised a false plea of suicidal death over a domestic quarrel which is ruled out by the medical evidence. These facts clearly establish that appellant no.1 was present with the victim at the time of occurrence. Apart from appellant no.1, no other person had the motive to assault the victim as the demands had been made to start his business. Furthermore, it has come in evidence that the appellant no.2, the father-in-law of the victim used to work as carpenter in Calcutta, appellant no.3, mother-in-law was an aged lady while the appellant no.4 the brother-in-law was a heart patient.
In the aforesaid factual matrix, I have no hesitation to conclude that it was the husband, the appellant no.1, herein who being frustrated by the fact that the demand of Rs.20,000/- for starting his business had not been fulfilled, had assaulted the victim and thereafter manually strangulated her resulting in her death.
Coming to the conviction of appellant nos.3 and 4 under Section 201/34 of the Indian Penal Code, I find that the evidence that the appellant nos.3 and 4 had brought down the body of the victim is based on the findings in the inquest report (Ext. 2) which are inadmissible in law and there is no legally admissible evidence in support of such accusation. Hence, I record an order of acquittal against the appellant nos.3 and 4 on such score.
In the light of the aforesaid discussion, conviction and sentence imposed on the appellant no.1 is upheld.
Bail bonds of appellant no.1 are cancelled and he is directed to surrender forthwith before the trial Court to serve the remainder of his sentence, failing which the trial Court shall take necessary steps to execute the sentence in accordance with law.
Period of detention suffered by the appellant no.1 during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
The appeal stands abated against appellant no.2 as he had expired in the meantime.
Appellant nos. 3 and 4 are acquitted of the charges levelled against them and they shall be discharged from their bail bonds.
The appeal is partly allowed.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.)