Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon’ble Justice Aniruddha Bose
And
The Hon’ble Justice Asha Arora
C.R.A. 362 of 2005
Tapan (Tappu) Bhowmick
Vs.
The State of West Bengal
Advocate for the appellant : Mr. P.S. Bhattacharyya
Advocates for the State : Mr. Subir Banerjee, Ld. A.P.P.
Mrs. Kakali Chatterjee,
Mr. Pratick Bose.
Heard on : 07.012.2016, 08.12.17 03.05.18
Judgement on : 7th May, 2018.
ANIRUDDHA BOSE, J. :-
1.
The appellant has been convicted of offences under the
provisions of Sections 302 and 498A of the Indian Penal
Code, 1860 and sentenced by the Trial Court to suffer
rigorous imprisonment for life for the former offence and
imprisonment of similar character for three years in respect
of the latter. Sentence of the appellant includes direction to
pay fine of Rs.4,000/- as punishment for each of the
offences of which he has been convicted. In default thereof,
further rigorous imprisonment for six months has been
prescribed for his conviction under Section 302 of the 1860
Code and for forty days in relation to the other offence.
Charge against the accused is having committed murder of
his wife, Sabita Bhowmick as well as treating the victim
after their marriage with cruelty by torturing her both
physically and mentally.
2. Case of the prosecution, which was sustained by the Trial
Court, is that while accompanying his wife to a “Jatra” (a
form of indigenous theatre) at “Haripat” on the night of 2nd
January, 2002, the appellant had attacked her on the way
and injured her head and several other parts of the body
with bricks. Their matrimonial home was at mouza Uttar
Lou Chapra under Dinhati Police Station in the district of
Cooch Behar. Subsequently he took the injured victim to
their matrimonial home and there she was confined in a
room locked from outside. The victim’s groaning sound in
agony had alerted other relatives who used to reside close
by. The lock was broken and the injured victim was initially
taken to the nearby primary health centre at Bamanhat,
from where she was transferred to Dinhata sub-divisional
hospital on 3rd January, 2002 on being referred by the
attending doctor at that primary health centre. The victim
succumbed to her injuries in the sub-divisional hospital
after brief treatment at 11.35 A.M. on the same day. The
attending doctors at both the clinical establishments have
given evidence that the victim had told them that she was
assaulted by the appellant. The autopsy surgeon, Dr. D.K.
Khara (P.W. 13) in the post-mortem report opined
hemmorrhagic necrogenic shock, ante-mortem in nature to
be the cause of death of the victim. There was no
observation by the autopsy surgeon as to whether the
victim’s death was homicidal or accidental nature. Another
doctor, Ratan Barman (P.W. 26) who had examined the
patient at the sub-divisional hospital, stated in his
deposition, after explaining the nature of injuries suffered
by the victim that such types of injuries might be inflicted
by hard instruments. In cross-examination, however, he
also stated that “such injury might be inflicted by sudden
falling on bed….” The case was started on the basis of a
written complaint of one Kanak Ranjan Roy (P.W. 2) on 3rd
January, 2002 itself. In the written complaint he described
himself as Upa pradhan of the local gram panchayat. The
complaint was received at 22.35 hours on the night of 3rd
January 2002 and in this complaint the appellant was
named as the assailant.
3. There was no eye-witness to the actual act of assault.
Finding of guilt and conviction by the Trial Court is based
on circumstantial evidence. The Trial Court has primarily
relied on statements of the victim narrated by two medical
practitioners treating her, by which she attributed her
injuries to assault by her husband, the appellant. Such
statements of the victim were in the nature of dying
declarations. These two medical practitioners were Dr.
Amitava Barman (P.W. 23), who at the material point of time
was attached to the Bamanhat primary health centre and
Dr. S. Mandal (P.W. 25). The latter treated the victim at the
sub-divisional hospital. The defence stand before the Trial
Court was his innocence and it was emphasised that he was
absent from the place of occurence at the material time. In
his reply to examination under Section 313 of the Code of
Criminal Procedure, 1973, the appellant took a stand that
he had been implicated in a false case and that he was not
at home. Altogether 31 witnesses were examined by the
prosecution, of whom 12 were witnesses of fact. We shall
deal in this judgment the evidences of those witnesses only
which we find relevant and necessary for adjudication of
this appeal. There were several routine witnesses and also
witnesses whose depositions are inconsequential and we
shall avoid referring to their depositions in this judgment.
The father of the appellant Kishtish Chandra Bhowmick
(P.W. 3) and a brother of the appellant Gourango Bhowmick
(P.W. 4) had made statements which were recorded under
Section 164 of the 1973 Code and in such statements
(exhibits 2/3 and 3/6), as recorded they sought to implicate
the appellant by stating that both of them had heard the
victim saying that she was assaulted by her husband. Both
of these witnesses, however, were declared hostile. The
P.W. 3 denied giving any statement before the Magistrate
whereas the P.W. 4 in his examination-in-chief proved his
signatures made on the statement but he deposed that the
statement was given to him before the Magistrate. None of
them repeated making such statements in their depositions
in course of trial. Tamal, the son of the appellant and the
victim also deposed as prosecution witness (P.W. 1) but
again was declared hostile. Altogether seven witnesses were
declared hostile, being P.W. 1, P.W. 3, P.W. 4, P.W. 5 –
Basana Bhowmick (wife of another brother of the appellant),
P.W. 7 – Paresh Chandra Bhowmick (an uncle of the
appellant) and P.W. 8 – Tapan Paul (owner of a grocery shop
near the location where the act of assault was meant to
have had taken place).
4. Among the other witnesses of fact, P.W. 6 (Dipak Basak)
was the brother of the victim. The other witnesses of fact
are residents of the same or nearby localities and we do not
find much significance in relation to their evidence. Three
seizure lists were made exhibits, of which exhibit12/3 being
notings and the bed-head ticket at the sub-divisional
hospital is of importance so far as this appeal is concerned.
A document purporting to be “terms of settlement”, which
was seized on 4th January, 2002 seeking to lay down
compromise terms in marital dispute between the appellant
and the victim has also been referred to by the learned
counsel for the State. This document does not bear any
date of execution and in our view has little impact on this
appeal, except that the same points to certain past disputes
between the appellant and the victim. The other items
seized were two pieces of broken bricks and three pieces of
broken red coral bangle. The broken bricks and pieces of
coral bangle were seized from the place of initial occurence
on 4th January 2002, and the seizure list records Uttar
Lowchapra (Bamanhat) as the place of seizure. In his
deposition, Probin Pradhan (P.W. 27), who at the material
time was the investigating officer described the place of
seizure of these bricks and broken bangles to be “near
Bamanhat Railway Station.” Wearing apparels and broken
pieces of shell bangles formed subject-matters of another
seizure list. But these materials again are of not much
significance so far as present appeal is concerned. Two
inquests were made at the sub-divisional hospital on 3rd
January, 2002 by the Executive Magistrate Amit
Roychowdhury (P.W. 28) and Dipak Kumar Panja an A.S.I of
police at the S.D. Hospital and these inquest reports were
also made exhibits.
5. The Trial Court primarily relied on evidence of the two
medical practitioners, which included narration of the
victim on the aspect of cause of her injury to them as well
as the depositions of P.W. 1, P.W. 3 in coming to the finding
of guilt of the appellant. The Trial Court opined that it was
only the accused/appellant who had the opportunity to be
with the victim and it was he alone who could assault her
on the night of occurence. Broadly, the last seen together
principle was applied.
6. Mr. Partha Sarthi Bhattacharyya, learned counsel for the
appellant has assailed the judgment of conviction and the
order of sentence on the ground that none of the charges
were proved beyond reasonable doubt. He has submitted
that the entire case is based on hearsay evidence and the
F.I.R. maker (P.W. 2) has also not disclosed from whom he
heard of the incidence. Next, his submission is that there is
also no evidence as to who took the victim to the hospital.
According to Mr. Bhattacharyya, the appellant was not
present at the place of occurence and he pointed out various
flaws in the factual narrative of the prosecution witnesses
through which the case against the appellant was
constructed by the prosecution before the Trial court. He
also wants us to disbelieve the two doctors, P.W. 23 and
P.W. 25 on the aspect of deposing on dying declaration of
the victim, having regard to the state of her physical and
mental condition. The State, however, defended the
judgment and Mr. Subir Banerjee, learned additional public
prosecutor appearing for the State has argued that there
was sufficient evidence before the Trial Court to implicate
the appellant in the two offences with which he was
charged.
7. We shall first examine the question as to whether the
appellant was present or not at the place of occurence as
his absence is the main defence of the appellant. P.W. 3,
his father and P.W. 4, his brother deposed that the
appellant was at Dhubri at the material point of time. But
the F.I.R. maker, P.W. 2 in his deposition stated that he had
seen the couple that is the appellant and the victim going to
see the jatra at Haripat. No contrary suggestion was given
to him in his cross-examination. He is a neutral witness and
we do not find any reason to disbelieve him on this count.
Moreover P.W. 3, being the father of the appellant in his
cross-examination by the defence also stated that his four
sons including the accused Tapu Bhowmick were at the
cremation ghat. There is no independent evidence adduced
by the appellant to sustain his alibi of being at Dhubri. The
appellant has failed to establish that he was in Dhubri on
the night of occurence. On the other hand, a neutral
witness has given evidence that he had seen the appellant
was present with the victim on the night on which the
assault had initially been made. The sequence of events, in
terms of their importance next is discovery of the injured
victim in a locked room in her matrimonial home. P.W. 1,
has stated that at about 7 A.M. on 3rd January 2002
(referred to by him as “the day of incident”) he rushed to his
home along with P.W. 3 upon hearing “cry of my mother”
and on reaching there his “dadu” (grandfather) broke the
door and rescued his mother. Though this witness was
declared hostile, his evidence cannot be discarded
altogether on this aspect and there is no contrary
suggestion to him on this part of his deposition. He has
also stated that the victim was taken to Bamanhat hospital.
P.W. 1 was declared hostile when he deposed that he did
not state to the police about any incident relating to his
mother. But his deposition on the door being locked from
outside and being broken open has not been contradicted.
The part of the evidence, relating to breaking open of the
lock stands corroborated by the examination-in-chief of
P.W. 3. Another brother of the appellant P.W. 4 has also
corroborated the factum of breaking open of the door.
8. Now we shall turn to the evidence available as to what
transpired at the Bamanhat primary health centre. There is
a single sheet (Exhibit-12/9) with a stamp of the said health
centre showing reference of the patient with very poor
general condition to the sub-divisional hospital. There is
also indication of the injuries on this sheet and basic
treatment given to the patient. At the health centre the
victim was first attended by the P.W. 23, (Dr. Amitava
Burman) and he has proved exhibit 12/9. He was declared
hostile at the instance of the prosecution when in course of
his examination-in-chief, he stated that he could not
recollect whether he was examined by police or not. After
referring to the nature of injuries suffered by the victim, he,
inter alia, stated in course of his cross-examination by the
prosecution after being declared hostile:-
“It is a fact the Rinku Bhowmick, the
patient on her appearance before the
BPHC stated to me as her history of
assault that she has assaulted by her
husband I cannot recollect whether on
examination by the I.O. of case I stated to
police that Rinku stated to me that she
was assaulted by her husband.”
9. In cross-examination of P.W. 23 by the defence there is no
suggestion that such a statement attributed to the victim
was false. What he was cross-examined on was that such
statement of the victim did not appear in the treatment
sheet and time of examination of the patient and time of
reference of the patient to the sub-divisional hospital was
also not reflected in the treatment sheet being exhibit 12/9.
P.W. 25 is Dr. S. Mondal, who had treated the victim at the
first instance at Dinhata sub-divisional hospital. The
exhibited documents pertaining to treatment of the victim at
the sub-divisional hospital comprise of several sheets or
pages. The first two pages are printed forms carrying the
heading “RECORD OF IN-PATIENT”, which has been
marked exhibit 12/1. The next one is exhibit 12/2, which
include notings on patient condition and treatment advice
on a single sheet, which has been proved by P.W. 26, Ratan
Barman, who had made those notes. This has been referred
to by P.W. 26 as bed-head ticket. The next part of the bed-
head ticket on the reverse sheet of exhibit 12/2 has been
made exhibit 12/3 and has been proved by P.W. 25, who
has stated that the same was prepared and signed by him.
This sheet carries a hand written sentence on top of the
page:-
“H/o Physical assault by Husband
(as stated by the wife pt.)”
Rest of exhibit 12/3 again records condition of the patient
and treatment advise. The said notings also carry a request
for the ward-master to arrange for dying declaration and
endorsement of the ward-master of having taken note
thereof has also been proved by him, being exhibit 12/5.
10. As regards the said recordal, in his cross-examination by
the defence, P.W. 25 stated:-
“Not a fact that the history as stated by
the patient about assault done by her
husband is not correct. I also do not find
any name of witness in the report in
whose present the statement of history of
assault was stated by the patient to me.”
11. On behalf of the appellant question was raised on the cause
of death of the victim, referring to the evidence of the autopsy
surgeon, post-mortem report and evidence of P.W. 26 to the
effect that the injuries suffered by the victim could be caused
by sudden falling on bed. The other flaws in the prosecution
case pointed out by Mr. Bhattacharyya are that the treatment
sheet of the primary health centre did not carry any
endorsement by the attending doctor about assault on the
victim by her husband. So far as endorsements made on the
bed-head ticket of the sub-divisional hospital are concerned,
his submission is that mere recordal of a statement attributed
to the victim ought not to be made the basis of conviction as
there is no proper disclosure on maker of such statement. Mr.
Bhattacharyya has emphasised on failure to have formal
recordal of dying declaration in spite of advise of the attending
doctor. He has relied on a decision of the Hon’ble Supreme
Court in the case of Mayur Panabhai Shah Vs. State of
Gujarat [(1982)2 SCC 396]. In this authority, it has been
held by the Hon’ble Supreme Court that even where a doctor
has deposed in Court, his evidence has to be appreciated like
the evidence of any other witness and there is no irrebuttable
presumption that a doctor is always a witness of truth.
12. We have disbelieved the defence story that the appellant
was not present at the time of occurence of the incident. We
have already given our reasoning for doing so. After the
couple (appellant and the victim) was seen together by the
P.W. 2, we find that there is direct evidence of the victim
found alone in a locked room with grave injuries. No evidence
has come forth from the defence to explain how the victim was
found locked from outside in a room in her matrimonial home.
13. What are the circumstances which implicate the
appellant/accused in the offence he was charged with? We
have to ignore the statements of P.W. 3 and P.W. 4 recorded
under Section 164 of the 1973 Code. In their depositions these
two witnesses did not confirm their statements and in fact in
substance denied having made them. We have earlier dealt
with the nature of their denial. The first medical practitioner
to attend the victim was P.W. 23, who at the material point of
time was attached to the aforesaid primary health centre. He,
after being declared hostile, in cross-examination by the
prosecution stated that it was the victim on her appearance
before the health centre had told him the history of assault by
her husband. In the treatment sheet, however, this was not
recorded. Though the treatment sheet or bed-head ticket at
the sub-divisional hospital does not record who had stated
about physical assault upon the victim but this lacuna has
been explained by the P.W. 25. At the said sub-divisional
hospital, however, in spite of advise or request, the dying
declaration of the patient was not recorded in a formalized
manner. There is no explanation from the prosecution as to
why it was not done. We, however, find that the victim was
admitted on 3rd January 2002 at 9.55 hours and she had
expired at 11.35 A.M. on the same day. In the sub-divisional
hospital, she survived only for one and half hours. For these
reasons, we do not think we shall reject the statements of two
medical practitioners from two clinical establishments
narrating the same statement of the victim by which the
victim attributed the assault to her husband. Both these
witnesses stuck to their statements in their cross-examination
and we do not find any reason to disbelieve them, even if we
treat them as ordinary witnesses, as has been mandated by
the Hon’ble Supreme Court in the case of Mayur Panbhai
Shah (supra). They are neutral witnesses and there is no
evidence of any enmity of these witnesses to the
appellant/accused. The autopsy surgeon did not specifically
state that the injuries were homicidal in nature. But there is
sufficient evidence that the injuries suffered by the victim
could be inflicted by hard instrument and the patient had died
due to such injuries. This transpires from the deposition of
P.W. 26 Dr. Ratan Barman, who had also attended the victim
at the sub-divisional hospital. In his cross-examination he
stated that such injury could be inflicted by sudden falling on
bed. But this possibility does not rule out the other part of
his evidence about the possibility of the injury being inflicted
by hard substances. The autopsy surgeon (P.W. 13) had also
stated that the types of injuries suffered by the victim could be
inflicted by the hit of “hard substance” but was inconclusive
in his opinion as to whether death of the victim was homicidal
or accidental. But as we have believed the depositions of P.W.
23 and P.W. 25 that the victim herself stated to both of them
in two different hospitals that she was assaulted by her
husband, we have to rule out the cause of death being
accidental in nature. There is no explanation as to why the
victim was locked in alone in her matrimonial home. All these
circumstances, in our opinion, prove beyond reasonable doubt
that it was the appellant who had assaulted the victim and the
death of the victim was caused by the appellant intentionally.
We do not find any reason to interfere with the findings of the
Trial court on this count.
14. In relation to the charge against the appellant under Section
498A of the 1860 Code, the Trial Court has relied on the
depositions of P.W. 1, P.W. 2 and P.W. 6. The Trial Court
held:-
“Now with regard to the charge U/S
498(A) I.P.C., I find in the deposition of
Tamal Bhowmick (P.W. 1) and (P.W. 2)
Kanank Ranjan Roy and (P.W. 6) Dipak
Basak that the accused was in the habit
of doing usual torture and beating
towards his wife and the accused was
found doing mercilessly and without care
and request of neighbouring people and
the same torture was admittedly found tobe done since after her marriage till the
incident of murder committed by the
accused at his place.”
15. We have gone through the depositions of the respective
witnesses and find no error in the judgment of the Trial Court
in convicting the appellant under the aforesaid provisions. We
accordingly dismiss the appeal.
16. Let Lower Court records with a copy of this judgment be
sent down to the learned Court below immediately by the
department.
17. Urgent Photostat certified copy of this order be given to the
parties, if applied for, on priority basis on compliance of all
formalities.
I agree
(Asha Arora, J.) (Aniruddha Bose, J.)