498A – Child witness not valid, can be tutored

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

CRA No. 187 of 2010

Sentu Ghosh & 2 Ors. –Appellants/Accused

-versus-

The State of West Bengal & Anr. — Opposite Parties

Mr. Priyabrata Ghosh … for the Appellants

Mr. Madhusudan Sur … for the State

Heard on : 03.4.2013
Judgment on : 04.04.2013.

Toufique Uddin, J. :

This appeal arose out of the judgment and order dated 16.02.2010 and 17.2.2010 passed by the learned Additional Sessions Judge, Kandi in Sessions Trial No. 2 of August, 2003 arising out of Sessions Case No. 24 of 2003 and thereby convicting the appellants for commission of offence under sections 498A/306 of Indian Penal Code and sentencing them for a period of three years and five years respectively with further direction to pay fine with default clause.

In the background of this appeal, the fact in a nutshell is as follows :

One Jagannath Mondal lodged a complaint to the effect that Jonaki i.e. the daughter of Jagannath Mondal was married with Sentu Ghosh on 5th Asar, 6 years ago. Since marriage her husband, father-in-law and mother-in-law began to torture her physically and mentally with demand of money. At about 7-00 p.m. on 14.11.1999 Jagannath got information that Jonaki consumed poison in her in-laws’ house and she was admitted in Kandi Hospital. He went there and found the dead body.

Sensing foul play at in-laws’ place of his daughter; a complaint was lodged. After investigation, police submitted charge-sheet against the accused persons under sections 498A/304B of Indian Penal Code.

The case was committed to the Court of Sessions by the learned Magistrate. After hearing, the learned Trial Court framed charges against the accused persons under sections 498A/306 of Indian Penal Code.

The contents of the charges were read over and explained to them when the accused persons pleaded not guilty and claimed to be tried.

To contest this case the prosecution examined as many as thirteen witnesses while none was examined on the side of the accused persons.

However, the accused persons were examined under section 313 of Cr.P.C. The defence case as it appeared from the trend of cross-examination and reply given by the accused persons at the time of examination under section 313 Cr.P.C. was denial of offence with a plea of innocence.

On trial the learned Trial Court convicted the present appellants/accused persons by the impugned judgment. Now, the point for consideration is if the impugned judgment suffers from any infirmities and calls for any interference or not.

Sections 498A, 306 of Indian Penal Code runs as follows :

“498A. Husband or relative of husband of a woman subjecting her to cruelty. — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation. – For the purpose of this section, “cruelty” means –

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

“306. Abetment of suicide. – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

To appreciate this case from a better angle, some relevant pieces of evidences are required to be mentioned here.

The FIR is marked as exhibit 2/1.

Having a glimpse over the same it appears that after marriage the husband Sentu Ghosh and other members of the in-laws house used to pressurize the victim Jonaki Mondal @ Ghosh to bring more money from her father’s house and as she could not fulfil their demand, torture continued and ultimately around 7-00 p.m. on 24.11.1999 an information was sent to the de facto complainant that the victim consumed poison and she was admitted in Kandi Hospital.

Exhibit- 3 is the Surathal report. Therefrom it appears that the police personnel opined that due to family matter, the deceased consumed unknown poison and then died.

P.W.- 1 produced the dead body to the Doctor who held post-mortem examination over the dead body. P.W.- 2 is a police personnel proving the formal FIR.

P.W.- 3 is the father of the victim. It was his specific statement that accused persons used to assault her on various pleas including demand of more money that could not be fulfilled. He further stated that he heard that she consumed poison and died but when he went to the house of the accused persons, his natni-Nivedita told that her mother did not die by consuming poison. Rather her father assaulted her mercilessly and when she wanted to have water at that time, her ‘Thakurma’ poured poison at her mother’s mouth by stating ‘Jal kha’. He was extensively cross-examined but what the irony of fate is that when his statement was compared with that of the evidence of the Investigating Officer i.e. P.W.- 12 as well as 164 statement of the child witness Nivedita, it clearly appears that her statement is full of embellishment on material points specially over the procurement of poison by the mother-in-law of the victim, as disclosed by the daughter-in-law of the de facto complainant.

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P.W.- 4, 5 and 6 other relation witnesses attempted to corroborate by stating that over the non-fulfillment of dowry the victim was subjected to torture by the accused persons but when compared to that effect and confrontation was taken from the evidence of the IO, it was found that they were not truthfulness witnesses.

P.W.- 7 is the mother of the victim girl. She attempted to follow suit her husband. But her evidence is hit by section 32 of Evidence Act because she heard about the factum of torture from the deceased.

In this respect, reliance may be put on (2010)1 SCC (Cri) 955 (Bhairon Singh -vs.- State of Madhya Pradesh) wherein the Hon’ble Apex Court propounded that statement of dead persons is admissible in law if the statement is as to cause of death or as to any circumstances of transaction which resulted in her death in a case in which cause of death comes into question and in case where the deceased had told the witness against the accused persons about torture and harassment is inadmissible under section 32(1) and such evidence cannot be looked into for any purpose. Reliance may also be made on Kans Raj -vs.- State of Punjab AIR 2000 SC 2324 wherein Hon’ble Apex Court held ‘The statements’ made by the deceased wife to her parents, brothers and acquaintances before her death would not be inadmissible in evidence in view of the provisions of section 32 of the Evidence Act.

P.W.- 8 is a hearsay witness.

I.O. of this case in cross-examination has stated that the members of the deceased’s family did not tell him about any matter of torture upon the deceased Jonaki Mondal @ Ghosh for demand of money or Jonaki Mondal @ Ghosh was forcibly fed poison by anyone nor anybody disclosed him that when Jonaki Ghosh was allegedly beaten by her husband and she asked for water then her mother-in-law poured poison in her mouth.

P.W.- 9 is the most vital witness, the grand-daughter of the victim de facto complainant i.e. the daughter of the deceased. She is ten years old. First of all is the question of her competency. The evidence shows that her competency was taken by the learned Court below and she was thought to be a competent witness. In case of child witness, the rule of law is that her evidence is to be considered very meticulously and should be tested from various angles mainly on the fact that child witness is prone to be tutored. Whether such principle can be put into application in respect of the evidence of P.W.- 9 is to be judged. She categorically stated that her father came home from the field and assaulted her mother with a lathi (meant for tending buffalo) and at that time she was weeping by falling at the feet of her father but she was kicked and her mother began to cry and was asking for water, when her grand-mother gave her poison in her mouth from a glass. She requested her grand-mother not go give poison but she gave a slap on her. She stated that she told such fact to the police but the I.O. totally denied that she made such statement to the police. In the 164 statement this witness Nivedita Ghosh went a bit ahead by stating that her grandmother brought the poison in a glass from cowshed and procured poison and her mother had laid on the floor. So, I wonder how I can put reliance to such inconsistent evidence given by such child witness. I am afraid, she might have been tutored to dance to the tune of her interested relations.

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Other witnesses are formal in nature. But I have to mention a note in respect of some other witnesses specially the Doctor.

P.W. -10 is a neighbour and hearsay witnesses. This witness projected a different picture. He stated that he noticed some remarks of assault on her body.

P.W.- 13 is a Doctor. This witness did not find any marks of injury on the person of the deceased. He held also post-mortem examination over the dead body. He could not give specific opinion about the death because it was kept pending till receipt of the report of FSL examination. But why the FSL report has not been produced before the Court is not clear.

This being the position, in the eye of law, the conviction cannot be sustained. The judgment and the conviction order passed by the learned Trial Court is hereby set aside. Accordingly, the appeal stands allowed.

The petitioners/appellants be released from bail bond forthwith and set at free immediately if they are not wanted in any other case.

Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately. Criminal Section is directed to supply the urgent Photostat certified copy of this judgment to the parties, if applied for.

(Toufique Uddin, J.)

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