Unknown vs State Of West Bengal on 19 April, 2017

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE

Present :
The Hon’ble Justice Joymalya Bagchi

C.R.A. No.166 of 1992

GOUR PALMAL
. . .APPELLANT
VERSUS

STATE OF WEST BENGAL
. . .RESPONDENT

For the appellant : Dr. Jyotirmoy Adhikari

Amicus Curiae : Ms. Meenal Sinha

For the State/respondent: Mr. Ayan Basu

Heard on : 10.1.2017, 7.3.2017 28.3.2017

Judgment on : 19.4.2017.

Joymalya Bagchi, J.:

The appeal is directed against the judgment and order dated 15.6.1992

passed by learned Additional Sessions Judge, Fifth Court, South 24-Parganas,

Alipore, in Sessions Trial No.3(1) of 1992 convicting the appellant for commission

of offences punishable under Sections 304B/498A of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for seven years for the offence

under Section 304B and to suffer rigorous imprisonment for two years and to pay

a fine of Rs.500/- in default to suffer rigorous imprisonment for two months more

for the commission of offence under Section 498A of the I.P.C., both the sentences

were to run concurrently.

Prosecution case, as alleged, against the appellant, namely, Gour Palmal, is

that the deceased Karuna Palmal, daughter of the informant Mina Ghosh (P.W.3)

was married to the appellant in May, 1984 corresponding to 28th Baisakh, 1391

B.S. From the wedlock a female child who was aged about 5/6 years at the time of

incident, was born in November, 1985. The appellant was an employee of Calcutta

Metro Railway. The couple resided at the native village of the appellant, namely,
Abas in the district of Midnapore along with his other family members who were

also accused in the instant case. As the appellant was working in the Metro

Railway, Calcutta, the couple also temporarily resided at Dumdum, thereafter at

Sakher Bazar, Behala and lastly at Belgachia. It was alleged that few months after

their marriage the appellant demanded a sum of Rs.1 lakh for construction of his

house and as the said amount was not paid, victim was subjected to mental and

physical torture. Due to such torture she was compelled to reside at her parental

home at Nayagram in the district of Midnapore. After she was sent to the

matrimonial home on the expectation that she would resume a happy marital life,

she was again tortured and in May, 1988 the victim came to the house of the

informant at Nayagram alleging that she had been assaulted by the appellant and

the other accused persons. She also apprehended that she may be murdered as

they had not paid the dowry amount of Rs.1 lakh. As the local members of the

club at Behala objected to the mental and physical torture on the victim, the

appellant changed his residence to Belgachia Metro Railway quarter in April,

1989. It was also alleged that in order to torture the victim, her minor daughter

was kept by the appellant at Laketown in the house of her sister-in-law, Gita

Basak who was also a co-accused along with the appellant. The victim further

informed her mother that the appellant and other accused persons would kill her

for realizing the life insurance money to the tune of Rs.60,000/- and that the

accused persons would burn her alive and they were giving electric shock to her

on the false accusation of being insane and had threatened that they would

compel her to commit suicide after making her write nobody would be responsible

for her death. In spite of such torture, the informant sent the victim to the house

of the appellant. Finally, on 26.6.1989 while the informant was lying ill at

Midnapore she received information from her neighbour that her daughter was

unwell. Getting such information, her minor son Sisir Kumar Ghosh (P.W.5) along

with brother of the informant, Sukumar Roy (P.W.4) and one Kalipada Chowdhury

(P.W.6), uncle of the deceased went to Calcutta and met the P.A. to the General

Manager, Metro Railway Office, Tollygunge where they were informed that the
victim had died due to burn injuries. They were told on 25.6.1989 the victim was

burnt to death by the appellant by pouring kerosene oil on her body in the railway

quarter at Belgachia. They went to official quarter of the appellant at Belgachia

and found the door locked. On 27.6.1989 Sisir (P.W.5) identified the dead-body of

his sister at N.R.S. Medical College Hospital and Morgue and on the request of the

appellant they permitted the dead-body to be handed over to him. Initially, the

informant was under an impression the a criminal case has been started but

when upon enquiry she found that no criminal proceeding has been initiated

against the accused persons, on 21.7.1989 she lodged a written complaint at

Chitpur Police Station and thereafter another written complaint dated 22.7.1989

to D.C.D.D., Lalbazar was lodged and finally, an application under Section 156(3)

of the Code of Criminal Procedure was submitted before the Chief Judicial

Magistrate, Sealdah against the appellant, Gour Palmal and eight in-laws, namely,

Netail Palmal, Nepal Palmal, Bejoy Palmal, Krishna @ Kesto Palmal, Bimala

Palmal, Arati Palmal, Sarathi Palmal and Gita Basak for commission of offence

punishable under Section 302/201/34 of I.P.C. Pursuant to direction of learned

A.C.J.M. the instant criminal case being Chitpur P.S. Case No. 273 dated

11.8.1989 under Section 302/201/34 of I.P.C. was registered for investigation. In

the course of the investigation, police seized various articles including letters

written by the victim and submitted charge-sheet against the appellant and eight

other accused persons. As the case was a sessions triable one it was committed to

the Court of Sessions and transferred to the learned Additional Sessions Judge,

Fifth Court, South 24-Parganas, Alipore for trial and disposal. Charges were

framed under Sections 304B/306/498A/34 of I.P.C. The appellant and other

accused persons pleaded not guilty and claimed to be tried. In the course of the

trial, prosecution examined thirty-one witnesses and exhibited a number of

documents. The defence of the appellant was one of the innocence and false

implication. It was the specific defence of the appellant and other accused persons

that the victim had been suffering from mental ailments and was under treatment

and had committed suicide on such score. The impugned prosecution case was
falsely instituted by the informant in order to prevent the appellant for taking

custody of his minor daughter from the informant. To probabilise their defence,

the appellant and other accused persons examined D.W.1, namely, Dr. Shyama

Prosad Mukherjee who had treated the victim to establish her mental illness and

unstable mental state. In conclusion of trial, the trial Court by judgment and

order dated 15.6.1992 convicted and sentenced the appellant, as aforesaid. The

trial Court, however, acquitted the other accused persons of the charges levelled

against them.

Initially, nobody appeared for the appellant and Ms. Meenal Sinha, learned

advocate was requested to assist the Court as amicus curiae. Subsequently Dr.

Adhikari appeared for the appellant and both the learned counsel were requested

to assist the court.

Dr. Adhikari and Ms. Sinha submitted that the prosecution has not been

able to prove the guilt of the appellant beyond reasonable doubt. Evidence of

demand of Rs.1 lakh for construction of house is not reflected in the letters

written by the victim and her relations exhibited in the instant case. There is

inordinate delay in lodging the First Information Report which was belatedly

instituted by P.W.3 in order to prevent the appellant from taking custody of his

minor daughter. It is also submitted that there is ample evidence on record led by

the defence to show that the victim was suffering from mental illness and

committed suicide due to mental instability. They prayed for the acquittal of the

appellant.

On the other hand, Mr. Ayan Basu appearing for the State submitted that

the evidence of the relations are supported by independent witnesses with regard

to torture due to demand of Rs.1 lakh by the appellant. He also submitted that

Exhibit-11, a purported suicide note found in the residence of the appellant was

not by the hand of the victim clearly pointing the guilt and such fact gives rise to

an adverse inference against the appellant. He also submitted that the evidence

with regard to mental ailment was not convincing and in view of the statutory
presumption under Section 113B of the Evidence Act the conviction and sentence

of the appellant ought not to be disturbed.

Let me examine the aforesaid issues in the light of the evidence on record.

Prosecution witnesses may be divided in the following categories:-

P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.12 and P.W.13 are the relations of

the victim, Karuna.

P.W.3, Mina Ghosh was the mother of the victim and de facto complainant

in the instant case. She deposed that the victim was married to the appellant on

28th Baisakh, eight years ago. Matrimonial home of the victim was at village Abas

in the district of Midnapore. She stated that the appellant was an employee of

Metro Railway and the couple lastly resided in the Metro railway quarter at

Belgachia. Sometimes the appellant resided at the place of posting and sometimes

resided in his ancestral house at Midnapore. At the time of marriage Rs.60,000/-

was given to the appellant as dowry. From the wedlock a female child was born

who was aged about 5-6 years at the time of occurrence. After the marriage P.W.1

along with her sons used to visit the matrimonial home of her daughter at

Midnapore. They also visited the house of the appellant at Sakher Bazar where he

resided with the victim for two years prior to his shifting to the railway quarter,

Belgachia. Initially, the relation between her daughter and the appellant was

cordial for eight months. Thereafter, her daughter was subjected to mental and

physical torture. The appellant and other accused persons assaulted her

daughter. Once the brothers and the sisters of the appellant called her in their

house and told her that her daughter was insane and to take her to her house at

Midnapore. In reply, she told them that her daughter was never insane before

marriage to the victim. Few days thereafter, her daughter came to her house at

Natungram, Midnapore, being clad in a dirty saree and complained she was

subjected to torture over the issue of non-payment of Rs.1 lakh for constructing

the house of the appellant. The victim reported to her that if she failed to bring the

said amount, the accused persons would make necessary arrangement to realize

the life insurance money of Rs.60,000/- after setting her on fire and killing her.
The victim also reported to her that the accused persons gave her electric shock

on the plea that she was insane. She also deposed that the victim was made to do

all the domestic work at her matrimonial home. One day as a single grain of rice

was found with the washing cloth (natya), the accused Arati Palmal assaulted her

and when she complained to her mother-in-law and husband, the latter threw her

on the ground. The witness persuaded the appellant not to behave badly with her

daughter. When the appellant was staying at his Sakher Bazar residence, he

called her there and he also called his brother Nepal Palmal. His brother asked

her whether her daughter was insane or not and should be sent to a lunatic

asylum or not and whether the witness would give an undertaking the she would

have no right or claim over her daughter. To reply, the witness told him that she

had given her daughter to the appellant and he knew everything about her

daughter. Thereafter, her daughter reported her that they shifted from Sakher

Bazar to Belgachia railway quarter being No.M/4. At that time, her daughter was

not allowed to be kept with the victim. The appellant told the witness that the

child was admitted in a mission but was actually kept in the house of Gita Basak.

Fifteen days later she got information of ill-health of her daughter from her

brother-in-law. As the witness was herself ill, she sent P.W.4, P.W.5 and P.W.6 to

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see her daughter and they reported that her daughter had expired. Initially, she

made a complaint in Chitpur P.S. but as no steps were taken she lodged a written

complaint with D.C.D.D., Lalbazar. She proved her signature on the paper

Exhibit-2 and 3. Thereafter she filed written complaint before the A.C.J.M.,

Sealdah (Exhibit-4/1 series). She proved the inland letter written by her daughter

to P.W.18, Sankar Bhandari (Exhibit-5). She also proved one letter dated 6.9.1987

written by the victim to the appellant (Exhibit-6). In cross-examination, she

deposed that police of Chitpur P.S. asked her whether her daughter was a lunatic

or not. She did not state to investigating officer that the appellant would assault

her daughter and she had to take the victim to her house. She did not recollect if

she stated to I.O. that before marriage her daughter was not insane. She did not

recollected whether she stated to I.O. that her daughter reported if she failed to
bring Rs.1 lakh the accused persons would realise the insurance money of

Rs.60,000/- after killing her. She kept her daughter in her residence during

pregnancy. On 30.11.1985 a female child was born to her daughter. After delivery

the victim stayed in her house for 2-3 months and thereafter she took her to the

house of the appellant. The ‘annaprasan’ ceremony of her grand-daughter was

held in the house of the appellant at Midnapore. After ‘annaprasan’ ceremony her

daughter and the appellant returned to Calcutta. Her daughter was in her house

from January, 1989. On recall by the defence she proved two letters written by

her daughter to her son-in-law (Exhibit-C and C/1).

P.W.4, Sukumar Roy is the brother of P.W.3 and maternal uncle of the

victim. He deposed that the victim was married to the appellant. The marriage was

a negotiated marriage. Initially, the relation between the victim and the appellant

was well but thereafter the appellant and other accused persons demanded Rs.1

lakh from P.W.3. As they failed to pay the dowry the victim was subjected to

mental and physical torture. The victim reported such incident to them. The

victim also reported that her sister-in-law, Arati Palmal assaulted her. She told

him that when she protested against such incident and complained to her

husband he slapped her. On the next day victim came in his house being clad in a

dirty saree and complained that she may be killed. Within 15-20 days the victim

came again and reported that she was again assaulted by the accused persons.

The victim used to visit his house once or twice in a year with the appellant and

during their visit, the appellant also assaulted her in his house for money. On

26.6.1989 one of the accused persons Bijoy Palmal came to the house of the

neighbour of his elder sister, Mina Ghosh (P.W.3) and told her to go to Calcutta

immediately. On receipt of such information, Mina called him, Sisir (P.W.5) and

Kalipada Chowdhury (P.W.6) and asked them to go to Calcutta. The appellant

used to work in the Metro Railway at Tollygunge. They went in his office and came

to learn from the General Manager, Metro Railway that on the previous day the

victim had passed away due to burn injuries. They also came to know that the

victim with her husband was living in a Metro railway quarter at Belgachia. They
went to the said quarter and saw the quarter was under lock and key. They also

found a hole on the plank of the door. They came to know that the dead-body of

the victim was lying at N.R.S. Morgue. Then they went to Chipore P.S. and also

went to N.R.S. Morgue. In his presence, inquest upon the dead-body of the victim

was held. He signed on the inquest report. He also identified the victim. In cross-

examination, he stated that he resided with his family at Chanda and village

Natungram was at a distance of 1½-2 miles from Chanda. 3-4 months after her

marriage, the victim reported him that the accused persons demanded dowry of

Rs.1 lakh from her mother. He admitted that at the time of inquest he did not

complain against the accused persons to the police of Chitpur P.S. He did not

make any accusation before the police at police station or at the time of

interrogation.

P.W.5, Sisir Ghosh is the brother of the victim. He deposed that victim

Karuna was married to the appellant. The appellant used to torture Karuna. Being

a lorry driver by profession the witness used to remain out of the house and heard

about the incidents from his mother. After the death of his sister he along with

P.W.4 and P.W.6 went to the railway quarter No.M-4 at Belgachia where the

couple resided. The railway quarter was under lock and key. Some portions of the

door were broken. From the railway quarter they went to the Tollygunge Metro

station where they contacted the Manager of Metro railway over telephone and

came to know that his sister had died due to burn injuries and her dead-body was

at N.R.S. Morgue. On 27.6.1989 the police of Chitpur P.S. interrogated him. He

stated to the police that he did not have any allegation against the appellant. He

even gave in writing that the dead-body of his elder sister may be handed over to

the appellant. He also told the Executive Magistrate at the time of inquest that he

had no allegation against the appellant. The witness deposed that the appellant

had told him that they had come from outside and would not be in a position to

cremate the dead-body of the victim and, hence they should make a request of

handing over the dead-body to him. Accordingly, he gave the above writing to

officer-in-charge, Chitpur P.S. He did not state to any police officer that since they
had failed to pay an amount of Rs.1 lakh to the accused persons the latter had

inflicted torture on her sister. He along with one Barun went to Laketown and

brought her niece to Chitpur P.S. At that time elder sister of the appellant Gita

Basak and Bimala Palmal were at the Laketown residence.

P.W.6, Kalipada Chowdhury is the sister’s husband of P.W.3 and the uncle

of the victim. He saw the dead-body of Karuna at N.R.S. Morgue. He had visited

the matrimonial home of Karuna at the time of negotiation of the marriage. After

the marriage he visited Sakher Bazar residence of the appellant. Initially, the

relationship between the couple was cordial. There was an incident at the

matrimonial home of Karuna over which Karuna’s sister-in-law assaulted her and

when she reported the matter to the appellant, the latter had also assaulted her.

One day he had gone to Karuna to keep her at Sakher Bazar but he found the

residence was under lock and key. When the appellant returned he did not allow

the victim to enter the house. Thereafter, Karuna and her child were permitted to

enter the house. The appellant rebuked Karuna for returning to her house on that

day. He further stated that one of the brothers of the appellant came to the house

of Subhas Ghosh and gave information that Karuna was ailing. On receipt of said

news he along with P.W.4 and P.W.5 went to the Tollygunge office of the appellant

as the address of Belgachia was not known to them. From the said office they

came to know that Karuna had died due to burn injuries. Then they went to the

Chitpur P.S. and were taken to Belgachia railway quarter of the appellant. There

they saw that some portion of the door had been broken and they went to N.R.S.

Morgue. He had failed to identify the dead-body of Karuna.

P.W.7, Subhas Ghosh is the uncle of the victim. He deposed that the victim

was married to the appellant in May, 1984. The appellant was the resident of the

village ‘Abas’ in the district of Midnapore. After three-four months of the marriage

Karuna worked as a domestic servant at her matrimonial home. As a single grain

of rice was found in the washing cloth (natya) she was assaulted by Arati Palmal

and when she protested the appellant also slapped her and she fell down on the
ground. In cross-examination, he admitted that he went to the house of the

appellant only during negotiations of the marriage and on the ‘phoolasajya’ night.

P.W.12, Beauti Ghosh is the younger sister of the victim. She deposed that

the victim was married to the appellant in 1984. After six-seven months of the

marriage the victim came to their house wearing a dirty saree and reported that

the appellant and other accused persons used to assault her for non-payment of

Rs.1 lakh as dowry. The victim also reported that on previous day as single grain

of rice was found on the washing cloth (natya) Arati assaulted her and when she

protested, her husband of the victim gave a blow on her head and she fell down

on the floor and became senseless. She further deposed that thereafter the couple

shifted to Calcutta residence from Midnapore residence. The victim came to their

house twice and reported that she used to be assaulted by the appellant and

other accused persons for non-payment of dowry. In June, 1989 accused Bijoy

Palmal came to the house of Subhas Ghosh and asked them to visit the house of

the appellant. Receiving the said information, P.W.4, P.W.5 and P.W.6 went to the

residence of the appellant. Upon their return, she came to know that the victim

had died due to burn injuries. In cross-examination, she proved various letters

(Exhibits-A/1, A/2 A/3) written by the victim during her lifetime.

P.W.13, Anup Ghosh is the younger brother of the victim. He has

corroborated the evidence of P.W.12.

Apart from the aforesaid relation witnesses, prosecution also examined

P.W.8, P.W.9 and P.W.10 who were neighbours of P.W.3.

P.W.8, Nanda Bhandari deposed that his house was situated beside the

house of P.W.3. P.W.13, brother of Karuna was his friend and after seven-eight

months of the marriage he came to learn from him that the victim was being

subjected to torture.

P.W.9, Kachi Paramanick is another neighbour P.W.3. He has corroborated

the evidence of the relation witnesses with regard to torture on victim.

P.W.10, Shamal Singh, however, did not depose anything about the torture

on victim, Karuna.

P.w.14 to 17 are the landlord and the neighbours of the couple at their

rented apartment at Sakher Bazar, Behala.

P.W.15, Akinchan Das is the landlord of the premises where the couple

resided at Sakher Bazar, Behala. He did not support the prosecution case and

had been declared hostile. He, however, proved his signature on the seizure list

(Exhibit-7/2) and on the letter (Exhibit-5) written by victim to P.W.18, Sankar

Bhaduri.

P.W. 14, P.W.16, P.W.17 were the neighbours of the couple of Sakher Bazar,

Behala. Apart from admitting their signature on the seizure list in respect of the

letter written by the victim (Exhibit-5) to P.W.18 they did not support the

prosecution case.

P.W.18, Sankar Bhandari and P.W.23, Basubendra Nath Mukherjee are the

colleagues of the appellant at his office in Metro Railway. They have also been

declared hostile. P.W.18, however, admitted his signature on the letter written to

him by the victim (Exhibit-5/3). P.W.18 deposed that the relationship between the

couple was cordial. P.W.23 who was an employee of Block Signal Inspector

(B.S.I.), Metro Railway worked with the appellant. He deposed that three-four

months before the death, the victim had come to their office in search of the

appellant. He did not support the prosecution case and was declared hostile.

P.W.19, P.W.20 and P.W.25 are the neighbours of the couple while they

were residing in the official quarter at Belgachia.

P.W.19, Biswanath Sarkar deposed that the incident took place in flat

No.M/4 on the first floor of the premises at 60, Belgachia Road Railway quarter.

Prior to the incident he did not know the victim or the name of her husband. On

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the date of the incident he came to the victim, Karuna Palmal, wife of the

appellant. Police seized various papers and articles from the said flat and

prepared the seizure list and he signed on the seizure list (Exhibit-8/1, 9/1 and

10/1). He identified the kerosene jar, bricks, bucket and half-burnt garments of

the victim which were produced in Court. He identified two letters seized from the

victim. He also identified two unused matchsticks which were seized from the
place of occurrence. In cross-examination he admitted that prescriptions of

Karuna issued by Dr. Shyama Prosad Mukherjee were also seized.

P.W.20, Sankar Kumar Banerjee is another neighbour of the couple and

resided in front of the flat No.M/4 of the said premises. He deposed that on the

date of the incident at about 10.00 a.m. having heard some hue and cry he came

to the balcony and found fire on the balcony of the appellant and a woman was

going on fire. We gathered in front of the said flat and broke upon the door with

the help of bricks and thereafter shifted the victim to the hospital.

P.W.25, Pranab Kumar Sarkar is another neighbour of the appellant in the

said premises. He deposed that prior to the incident he used to visit the quarter of

the victim. During their visit Karuna used to inform them about some affairs of

their conjugal life. They were facing an accommodation problem. Prior to coming

to this quarter they resided in a rented house at Behala and Dumdum. Police

seized some articles from the railway quarter, prepared seizure list and he signed

on the same. He identified the seized articles in Court. In cross-examination he

deposed after breaking the door of the flat they found Karuna was burning in the

balcony.

These are the witnesses of fact.

P.W.24 and P.W.28 are the medical witnesses.

P.W.28, Rohini Ranjan Dhar was attached to R.G. Kar Medical College and

Hospital as Emergency Medical Officer. On 25.6.1989 at 11.00 a.m. he examined

Mrs. Palmal wife of Gour Palmal and declared her ‘brought dead’. He proved the

death certificate of the victim (Exhibit-17).

P.W.24, Rabindra Nath Karmakar is the Autopsy surgeon who held autopsy

on the victim. On examination he found the following facts:-

“Rigor Mortis passed off. Body is the state of decomposition with
bloating up of all the body features. Eyes open, Corneas hazy, Pupils
dilated equally on either sides and fixed. Complexion cannot be
ascertained. Vermillion mark could not be detected from the frontal
scalp hair parting. Wearing apparels burst piece of printed Saree. One
burnt piece of pink petticoat, one … burnt piece of blouse, one sponge
and red plastic and one iron bangle on the left wrist. Strong smell like
that of Kerosene oil from wearing apparels, scalp hairs and different
parts of the body. Scalp hairs almost burnt and seanged.

On examination I found the following injuries:-

1. 1st and 2nd degree burn injuries over scalp, whole of face and
neck all around with burning and signing of the scalp hairs, eye
brow and eye lashes.

2. 1st and 2nd degree burn injuries over both the arms and
forearms all around, both axilla, both the dorsum and palms of
hands with burning and signing of the auxiliary hairs.

3. 1st and 2nd degree burn injuries over chest and abdominal wall
all round including both the breasts, both the gluteal regions,
perineum …(torn) and extended genitalia with burn and signing
of pubic hairs.

4. 1st and 2nd degree burn injuries over both the thighs and legs all
around including proximal 2/3 of the dorsum of both feet.
All the injuries showing evidence of vital reaction. The burn injuries
are described following Wilson’s clarification.”

No other injuries were detected. He, however, deposed that the death of the

victim was due to burn injuries as noted above ante-mortem in nature.

P.W.21, Kamal Chandra Halder is the handwriting expert who examined the

seized letters (Exhibits-5 and 6) and the purported suicide note (Exhibit-11) and

deposed that Exhibits-5 and 6 were tallying with the admitted handwriting of the

deceased whereas Exhibit-11 did not.

P.W.s 1, 2, 26, 27, 29, 30 and 31 are the official witnesses in the instant

case.

P.W.1 is the plan maker who prepared sketch map of the place of

occurrence at Belgachia quarter of the appellant.

P.W.2 is the official photographer who photographed of the place of

occurrence.

P.W.27, Dulal Chandra Ghosh was a sub-inspector of police attached to the

Chitpur P.S. on 25.6.1989. He deposed that on 25.6.1989 at 10.20 hrs. he

received a telephonic information that an unknown woman set herself on fire at

her residence at 60, Belgachia Road. He made G.D. Entry being No.2010 dated

25.6.1989 of such informationand reached the place of occurrence. On reaching

the place of occurrence he found that the victim had been shifted to R.G. Kar

Medical College Hospital. He went to the hospital and found the victim lying on

a stretcher in the emergency ward of the hospital. He interrogated Dr. R.R. Dhar,

Emergency Medical Officer and was informed that the victim had already expired.

He collected death certificate (Exhibit-17) and medical certificate of the victim. He

held inquest over the dead-body of the victim (Exhibit-18). He returned to the
place of occurrence and seized various articles like kerosene jar, bucket,

matchsticks under seizure lists (Exhibit-8, 9 10). He seized two letters. He

requisitioned for a photographer who took photograph of the place of occurrence.

On the next date, that is, 27.6.1989 brother of the deceased Sisir Ghosh and

uncle Sukumar Roy and another relation Kalipada Chowdhury came to the police

station and Sisir filed an application stating that he had no allegation against the

appellant and requested the police to hand over the dead-body to the appellant.

Sisir Ghosh also told him that they were not inclined to initiate any case against

any of the accused persons. The witness further stated that inquest over the

dead-body was made by an Executive Magistrate and dead-body was handed over

to the appellant. After lapse of a month, P.W.3 lodged a complaint against the

appellant. He sent a report to officer-in-charge, Chitpur police station and the

O.C. sent the said report to D.C. North for taking necessary action. On 28.7.1989

the witness collected postmortem report from P.W.24. O.C., Chitpur P.S. endorsed

him to investigate the matter. He went to Midnapore and examined witnesses

under Section 161 Cr.P.C. In the meantime on the basis of Court complaint

Detective department commenced investigation on 11.8.1989 and on the order of

D.C.D.D. he handed over the investigation to the said department. In cross-

examination, the witness deposed that in the U.D. case he examined the relations

of the deceased.

P.W.26, Netai Pada Mondal was a constable attached to Chitpur police

station who identified the dead-body at the time of inquest and postmortem

examination.

P.W.30, Asis Gope who was attached to Chitpur police station at the time of

the incident had deposed that on 11.8.1989 on receiving the Court complaint, he

filled up the formal F.I.R. of Chitpur P.S. Case No.273 dated 11.8.1989 under

Section 302/201/34 of I.P.C. (Exhibit-23) against the accused persons.

P.W.31, A.K. Biswas who was the investigating officer in the instant case

attached to Detective department, Lalbazar. He commenced investigation in the

instant case, proceeded to the place of occurrence, interrogated the witnesses,
requisitioned a plan maker and prepared a sketch plan of the place of occurrence.

He sent the exhibits to F.S.L. for examination through Dina Nath Singh, P.W.29.

He examined witnesses. He seized the letter written by the victim to Sankar

Bhandari (Exhibit-5). He sent the suicide note and letter to Question Documents

Bureau, C.I.D., W.B. (Exhibit-7). He sent another letter dated 6.9.1987 (Exhibit-6)

written by the victim for handwriting examination. He collected F.S.L. report,

arrested the appellant and filed charge-sheet.

The defence examined Dr. Shyama Prosad Mukherjee as D.W.1. He deposed

that on 19.12.1986 he examined one Karuna Palmal. He proved his prescriptions

dated 16.2.1987 and 20.7.1988 (Exhibit-A A/1). Patient was advised

subsequently on 17.3.1987 and 4.6.1987. On 19.12.1986 he examined Karuna

Palmal and applied electro convulsive therapy and psychotherapy. On the

prescription dated 20.7.1988 issued by him he noted the following finding:-

1) patient had one issue (22 years 7 months); 2) symptom – created reference;

3) deep depression; 4) attempted suicide. He stated that E.C.T. was given to the

patient to give her relief from her major symptoms of depression and suicidal

urge. He further stated that the suicidal urge or depression usually starts at adult

age. In cross-examination, he deposed that he was posted at Midnapore Sadar

hospital as Psychiatrist. He treated the patient in his private chamber. The

prescriptions or diary maintained by him did not reveal with whom Karuna Palmal

attended his chamber. He stated that on perusal of prescription he could not say

from whose version he noted the finding that the patient attempted to suicide.

Apart from the oral evidence a number of documents particularly letters

written by the victim and her mother, P.W.3 have been exhibited. They are as

follows:-

Exhibit-5:- Letter written by the victim to P.W.18, Sankar Adhikari.

Exhibit-6:- Letter dated 6.9.1987 written by the victim to the appellant.

Exhibit-A A/2:- Letter written by the victim to the appellant.

Exhibit-A/1:- Letter written by the victim to her father-in-law.

Exhibit-B:- Letter written by P.W.13 (Anup Ghosh) to the deceased in 1987.
Exhibit-C C/1:- Letter written by P.W.3 to the appellant.

Let me see whether the evidence on record establishes the ingredients of the

offences punishable under Section 304B/498A of the Indian Penal Code.

Ingredients of 304B are as follows:-

(a) Death of the housewife has occurred within seven years of her

marriage.

(b) Such death is caused by burns or bodily injuries or otherwise than

under normal circumstances.

(c) Soon before her death she was subjected to cruelty and

harassment by her husband or any relation of the husband in

connection with any demand of dowry.

Karuna Palmal, the victim, was married to the appellant in May, 1984 and

died due to burn injuries on 26.6.1989, that is, within seven years of her

marriage. Hence, the first two ingredients of the offence punishable under Section

304B have been established in the instant case. The question is whether Karuna

was subjected to cruelty or harassment for or in connection with dowry soon

before her death. P.W.3 to P.W.7, P.W.12 and P.W.13, who are the relations of the

victim, have deposed that few months after the marriage of Karuna the appellant

had demanded a sum of Rs.1 lakh for construction of house. As aforesaid sum of

money was not paid the victim was subjected to mental and physical torture. On

one occasion, over the issue of one single grain of rice being found in the washing

cloth she was assaulted by Arati Palmal and when she protested the appellant

also assaulted her and she fell on the ground and became senseless. Due to

torture she repeatedly returned to her maternal home and even reported to P.W.3

that the appellant threatened to kill her and realized the life insurance money of

Rs.60,000/-. The accused persons also threatened that they would prepare a

suicide note exonerating everyone in the event of her death. P.W.3 has deposed

that once she was called to the residence of the appellant at Sakher Bazar, Behala

where she was informed that her daughter was insane and is required to be sent

to an asylum. The evidence of the relations have been corroborated by P.W.9, a
neighbour of the mother (P.W.3) of the victim. However, the allegations of torture

and ill-treatment on the victim have not been corroborated by the neighbours

residing near the residence of the appellant at Sakher Bazar, Behala and the

landlord of the said premises. They were declared hostile. One of these witnesses,

P.W.18, even stated relationship between the couple was cordial. P.W.s 19 and 25

who were the neighbours of the couple at the Metro railway quarter where they

last resided, have also not deposed about any cruelty or ill-treatment on the

READ  Nitin Shankar Kadkol-vs-Union Of India (Uoi) And Ors. on 17 December, 2003

victim by the appellant.

An analysis of the aforesaid oral evidence on record shows that while the

relations of the victim and one of their neighbours have spoken of ill-treatment

and/or torture on her with regard to the demand of Rs.1 lakh, other witnesses

staying in and around rented apartments of the couple at Sakher Bazar, Behala

and Belgachia have not supported the allegation of ill-treatment or torture on the

victim. That apart, the evidence of relation witnesses also suffers from

embellishments and/or contradictions. Incident of assault on the victim by the

appellant due to one single grain of rice found in the washing cloth is stated by

P.W.3 for the first time in Court and does not find place in the F.I.R. Allegation of

assault by the appellant in the presence of P.W.4, the maternal uncle of the

victim, is also not corroborated by any other witness. To test the veracity of the

allegations coming from the mouths of the relation witnesses it may be prudent to

seek corroboration of their versions from the contemporaneous letters written by

the victim and the said witnesses, namely, P.W.3 and P.W.14 which have been

exhibited in the instant case. Exhibit-6 is a letter dated 6.9.1987 written by the

victim to the appellant. Exhibit-A and A/2 are also letters written by her to the

appellant. Exhibit-A/1 is another letter written by the victim to her father-in-law.

I have perused the aforesaid letters. None of these letters refer to any monetary

demand made by the appellant far less a demand of Rs.1 lakh as deposed by the

witnesses. There is also no allegation of torture upon the victim for non-payment

of any such demand, as alleged. There are certain grievances expressed with

regard to the indifference of the appellant towards the victim and his failure to
visit her while she was at her parental home and nothing more. However, the

grievances expressed in these letters cannot by any stretch of imagination be

construed as cruelty sufficient to drive a woman to commit suicide and may be

attributed to the everyday wear and tear in the matrimonial life. Moreover,

Exhibits-A and A/2 speak of poor health of the victim and her necessity to take

medicines for such ailments. In Exhibit-A/1 which is a letter written by the victim

to her father-in-law, she speaks of her poor health and her desire to return to her

matrimonial home as soon as her health improves. Exhibit-5 is another letter

written by the victim to P.W.18 wherein she discloses a suspicious character and

admits of visiting the office of the appellant surreptitiously to snoop on her

husband at his place of work and requests the addressee, P.W.18 not to divulge

such her activity to him. This letter also does not refer to any ill-treatment or

torture with regard to demand of dowry. P.W.23, another colleague of the

appellant admits in his evidence that the victim came to the office in search of her

husband. Apart from the victim, P.W.3 and P.W.14 also wrote letters to the couple

being Exhibit-B, C and C/1 respectively. In these letters also there is no reference

to any demand of dowry and ill-treatment or torture on the victim. In fact,

Exhibit-C and C/1 written by P.W.3 to the appellant speak of her high confidence

in the letter and in these letters express her grievance as to why appellant did not

make out time from his work and visit her during her ailments or give support on

her over family disputes with her in-laws. None of these letters written during the

lifetime of the victim portray a case of torture or cruelty or any harassment on her

for or in connection with dowry as deposed by the relations of the victim in Court.

On the other hand, these letters reflect that the victim was keeping indifferent

health and was on regular medication. The grievance against the appellant in

these letters is at best indifference and failure to regularly visit the victim while

she was staying at her parental home at Midnapore. Oral evidence and

documentary evidence in the instant case are, therefore, at variance to one

another with regard to torture and/or cruelty on the victim over non-payment of

Rs.1 lakh as demanded by the appellant. While the oral evidence speaks of such a
state of affairs, there is no whisper either with regard to any demand of dowry or

torture or cruelty emanating therefrom on the victim in the letters written by the

victim or her relations during her lifetime.

On the other hand, these letters, however, corroborate the defence case of

poor health of the victim and her medication for such purpose. In Exhibit-A the

victim complains that such medication is not having desired results and in

Exhibit-A/1 she assures her father-in-law that she would return to the

matrimonial home as soon as her health improved. Hence, I am constrained to

hold that the prosecution case with regard to torture on the victim for and/or in

connection with dowry is a divided house and one ought to take the oral version of

the relation witnesses with regard to such torture with a pinch of salt in the

backdrop of the correspondences exchanged by and between the parties during

the lifetime of the victim. The prosecution case also suffers from a jolt due to the

inordinate delay in lodging the first information report. It has come on record from

the evidence of P.W.27 that P.W.5 filed an application stating that he had no

allegation against the accused persons. P.W.5, on the other hand, while admitting

to such fact deposed that he was asked to do so by the appellant as they were

outsiders and would not be able to cremate the dead-body of the victim. However,

in cross-examination he admitted that immediately thereafter he went to the

residence of the sister-in-law of the victim, namely, Gita Basak and took custody

of his niece, that is, daughter of the appellant. The conduct of P.W.5 in informing

the police that they have no allegation against the appellant and taking custody of

his niece immediately thereafter and lodging the instant criminal case after a

lapse of one and half months gives credence to the defence plea that the instant

criminal case had been belatedly foisted upon him as he had requested the

custody of his daughter from P.W.3. The explanation offered for the delay in

lodging F.I.R. in the instant case is very flimsy and unconvincing. Furthermore,

the conduct of P.W.5 in taking custody of the daughter of the couple from the

residence of Gita Basak, the sister-in-law of the victim, on the very day of the

death of the victim does not speak of a perplexed and helpless mind of the witness
and his companions. On the other hand, it shows a composed and calculated

behaviour on their part to take custody of the child on the day of the incident

itself and militates against the prosecution version that they were compelled to

exonerate the appellant as they were helpless outsiders in the city of Calcutta.

Such state of affairs, in fact, probabilises the defence plea that the criminal case

was subsequently resurrected after one and half months of the incident to deter

the appellant from pursuing his claim of custody of the daughter of the couple.

Finally, it has been argued that the purported suicide note (Exhibit-11)

being a fabricated one an adverse inference ought to be drawn against the

appellant. It is true that P.W.21, the handwriting expert has deposed that the

purported suicide note (Exhibit-11) which was recovered on 25.6.1989 from the

Belgachia railway quarter where the couple last resided, is not handwriting of the

deceased. However, the plea of the appellant that the victim committed suicide

due to depression arising out of and mental ailments is not only founded on the

aforesaid suicide note. D.W.1, a psychiatrist attached to Midnapore Sadar

hospital admitted that he treated the victim on various dates. The trial Court

refused to rely on the prescriptions issued by D.W.1 on the ground that the

medicines prescribed therein had been struck out. The trial Court failed to

consider that the prescriptions were revised on subsequent dates when the

patient visited by the doctor and the said doctor upon review had struck out

earlier medicines and prescribed others. Hence, I do not find any reason to

disbelieve the evidence of D.W.1 who claimed to treat the victim and issued

prescriptions which have been duly proved in the instant case. This defence

version of ill health of the victim also finds credence from the letters written by

her, namely, Exhibit-A, A/1 and A/2 to the appellant and his father wherein she

spoke of her poor health and medication being prescribed in connection with her

ailments.

In the aforesaid backdrop, I am of the opinion that there is sufficient

evidence on record to show that the victim was suffering from depression due to

mental ailments and was treated by a qualified psychiatrist by the appellant. It
has come on record from the evidence of D.W.1 that there was a likelihood of the

patient committing suicide due to her depressed condition. The aforesaid facts

probabilise the defence version that due to mental ailments the victim had to be

medically treated and on the fateful date had unfortunately self-immolated herself

due to suicidal tendencies arising out of such ailment. It has been strenuously

argued that the appellant had treated the victim with cruelty as he was indifferent

to her pleas of taking her back to her matrimonial home and that such cruelty

resulted in depression and consequential suicide. One cannot lose sight of the fact

that as the appellant was employed with Metro railway in Calcutta and there was

none to look after the victim at the rented accommodation of the appellant, it is

most likely that he found it convenient to keep the victim at her parental place. It

is true that the victim has complained in her letters that the appellant did not

visit her regularly at her parental place. However, the letters do not speak of any

ill-treatment or torture arising out from any demand of dowry. There is also

evidence on record that the appellant had arranged for the medical treatment of

the victim and got her treated by a qualified psychiatrist, D.W.1. It has also come

on record that the appellant organized ‘Annaprashan’ of his daughter at his house

at Midnapore. On the other hand, from the evidence of P.W.18 and P.W.23, the

colleagues of the appellant as well as Exhibit-5, letter written by the victim to

P.W.18, it appears that the victim was suffering from unknown apprehension and

suspicion about the appellant and was keeping a surreptitious vigil on him even

his place of work and had even confided in P.W.18 not to inform the appellant of

such conduct on her part. The aforesaid facts, in my opinion, do not establish any

ill-treatment or cruelty on the part of the appellant which would fall within the

meaning of ‘cruelty’ under Section 498A of I.P.C. or would establish the

ingredients of the offences punishable under Section 304B of I.P.C. or under

Section 306 of I.P.C.

In view of the aforesaid discussion, I am of the opinion that the prosecution

has failed to prove his case beyond reasonable doubt. The appellant is entitled to

an order of acquittal. The judgment and order of conviction is thus set aside. The
appellant is acquitted of the charges levelled against him. The appellant shall be

discharged from his bail bond after six months in terms of section 437A of Cr.P.C.

A copy of the judgement along with L.C.R. be sent down to the trial Court at

once for necessary action.

I record the able assistance rendered by Ms. Sinha as amicus curiae in

disposing of the appeal.

The appeal is accordingly allowed.

Urgent Photostat certified copy of this order, if applied for, be given to the

parties on priority basis upon compliance of all formalities.

(JOYMALYA BAGCHI, J.)

PA to J. Bagchi, J.

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