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Ashim Kumar Chakraborty And Anr.-vs-State on 24 February, 2006

Calcutta High Court Ashim Kumar Chakraborty And Anr.-vs-State on 24 February, 2006
Equivalent citations:2006 (2) CHN 464
Author: P K Deb
Bench: A K Basu, P K Deb

JUDGMENT

Pranab Kumar Deb, J.

1. The violence against the womanhood continues unabated despite strong condemnation and outcry. This is an another sad story of a young housewife being charred to death within few months of her marriage. The prosecution case, as disclosed in the FIR and narrated during the course of the trial, was to the effect that since the inception of her marriage with the appellant Ashim Kumar Chakraborty, the young housewife Rumi Chakraborty had to face humiliation and hardship in her matrimonial house. She was quite often rebuked for her physical incapacity to domestic work. She was severely castigated after she had lost one of her ear rings. Despite promise being made by her relations to make another ring, the situation did not improve. Her ordeal continued. It reached the climax when on 07.05.94 at about 3-30 in the afternoon, her mother-in-law and husband reported to her father Subrata Kishore Chowdhury that his daughter had committed suicide by setting her ablaze. On receiving such information, her father and other relations rushed to her matrimonial house. On reaching there, they found the door of the bathroom closed. They pushed through the door into the bathroom to find her still ablaze. The body was taken out of the bathroom and thereafter it was sent to the hospital by an Ambulance. Finding the body ablaze with the appellants doing nothing to rescue the daughter, the informant had a firm conviction that his daughter had been murdered by the appellants.

2. With the incident being reported to the local police station, a specific case was registered against the appellants. In course of the investigation, the place of the incident was visited by the Investigating Officer. A sketch map of the place of occurrence with index was prepared. The Investigating Officer also took measurement of the door of the latrine of the bathroom. He followed it up by taking photographs of the place of occurrence. Some of the incriminating articles found at the spot were also seized. The accused persons, who were found at the place of occurrence, were also arrested.The inquest of the dead-body was made on the following date. The investigation went on with the examination of the available witnesses. The post-mortem report and as well as other reports were collected. Eventually, on collection of all those materials, chargesheet was submitted.

3. Both the appellants were charged with commission of offence under Sections 498A IPC, 302/34 IPC and 201/34 IPC. They were charged with having committed the offence under Section 498A IPC by subjecting the housewife called Rumi Chakraborty to continuous physical and mental torture. They were charged with having committed murder. Finally, they were charged with having committed the offence under Section 201/34 IPC for having caused disappearance of evidence by concealing the corpse of the deceased Rumi Chakraborty in the latrine of their quarter. The appellants, however, denied all the accusations levelled against them. The trial commenced with their denial of the charges. In course of the trial, the prosecution side examined as many as seventeen witnesses. Amongst the notable witnesses were the relations and neighbour of the deceased, the doctors who examined the body from time to time and the police officers who participated in the investigation. Two witnesses also deposed on behalf of the defence. Placing strong reliance on the evidence of her relations and some of the neighbours and the factum of death as evidenced by the post-mortem report, the learned Judge was pleased to convict both the appellants for commission of offence under Section 302/34 IPC. Both of them were sentenced to rigorous imprisonment for life and to pay fine of Rs. 6,000/- each, in default, to suffer further rigorous imprisonment for two months. The appellants, however, were exonerated of the charges under Section 498A and 201/34 IPC.

4. Aggrieved by the conviction and sentence, the appellants have preferred the appeal.

5. Assailing the conviction and sentence under Section 302/34 IPC. Mr. Mukherjee, senior counsel, contends that in view of the apparent inconsistency in the judgment, the order of conviction and sentence cannot be supported. In acquitting the appellants of the charge under Section 498A, IPC, the Trial Court disbelieved the contention of the prosecution that the appellants took the life of a young housewife for her repeated failure to do domestic work in their house. The Trial Court also disbelieved the story of the prosecution that the appellants were sore with the housewife for her doing silly things such as loosing ear rings etc. The motive the murder not having been accepted by the Trial Court, there was no reason for the Trial Court to hold that the appellants had been actuated by strong intention to get rid of her. Referring to the case of Omwati v. Mahendra Singh and Ors. reported in AIR 1998 SC 249, Mr. Mukherjee has argued that when prosecution puts a specific case as to motive of the crime, the evidence regarding the same has got to be considered. Mr. Mukherjee argues that motive plays an important and significant part in a case based on circumstantial evidence. That important aspect not having been established by evidence on record, there should not have been any conviction and sentence.

6. Mr. Mukherjee has contended that the prosecution in order to entangle the appellants introduced certain facts for the purpose of making the Court believe that no effort whatsoever was made by the appellants to rescue the housewife. Attempt was actually made on behalf of her near relations to show that the deadbody was sent to the hospital only after their arrival at the spot. The medical report (Ext. 7), however falsified their claim. Through P.W. 13 Dr. Biswanath Roy came the information that the deceased with cent percent burn injury was brought to the hospital at about 16-20 hrs. by the appellant No. 1 Ashim Kr. Chakraborty. The statement of P.W. 13 Dr. Biswanath Roy has exposed the falsity of the statements of the informant and some other witnesses on behalf of the prosecution. Despite prompt action being taken, the housewife did not survive. Struck with grief, the appellants straightaway went to the house of the informant to break the news of the demise of his daughter in a tragic incident. The appellants did what were expected from the in-laws. They did nothing which could be called unnatural or unethical.

7. Commencing on the approach of the Trial Judge as to the appreciation of the medical report, Mr. Mukherjee has submitted that the Trial Court altogether overlooked the inherent defects in conducting the post-mortem examination. Since it was the death of a housewife within seven years of marriage, the post-mortem examination ought to have been conducted by two doctors simultaneously. Furthermore, it was required to be conducted in day time. Deviating from norms, the post-mortem was conducted by P.W. 16 Dr. Saibal Gupta in failing light. Despite such irregularities being committed, the Trial Judge pinned absolute reliance on such post-mortem examination. Commenting on the role of P.W. 16 Dr. Saibal Gupta, Mr. Mukherjee contends that Dr. Saibal Gupta performed the dual role of an Investigating Officer and a doctor. By visiting the spot and interrogating the witnesses P.W. 16 Dr. Saibal Gupta usurped the role of the Investigating Officer. No concrete opinion as to the cause of death could be formed by him after examination of the deadbody. He reserved his final opinion till further inspection of the spot. Those were clear manifestations of his hesitancy. With vacillating mind, the doctor visited the spot and interrogated the witnesses. By taking an active part in investigation, he formed a definite opinion about commission of murder of a young housewife Rumi Chakraborty. Since the post mortem report was not based on the symptoms and the chemical features, it ought to have been straightaway rejected by the Trial Court, as urged by Mr. Mukherjee.

8. Criticising the post-mortem report prepared by P.W. 16 Dr. Saibal Gupta, Mr. Mukherjee submits that there was no rationality in preparation of the report. The report, it is contended, was not based on facts and materials, rather it was reflection of personal feeling. Ignoring the tenets of medical jurisprudence, Dr. Gupta resorted to his own imagination to prepare a distorted report. From the mere existence of bruise or contusion or even the protruding of the tongue one cannot infer it to be a definite case of murder. The doctor conducting the post-mortem report also did not take into account that absence of soot in larynx and trachea might be for different reasons.

9. Since the entire skin had been peeled off, there was no question of any marks of bruise or contusion on the body itself. Making a dig at the observation of P.W. 16 Dr. Gupta that murder was committed by strangulation, Mr. Mukherjee submits that in the event of strangulation, there would have been at least scratch mark or any other mark of force on the skin. Non existence of any such distinguishing marks or features shatters the myth that the appellants had strangulated the housewife, as urged by Mr. Mukherjee.

10. Making a strong plea for total discard of the report of Dr. Gupta, Mr. Mukherjee contends that Dr. Gupta could not cite any authority in support of his conviction that the death was caused by strangulation. The expert also did not take the help of Histology in forming his opinion. Had there been strangulation, there would have been damages on both parts of the hyoid bone. Both the parts of hyoid bone not having been fractured, it would definitely go against the view that murder was committed by strangulation. Regarding the absence of soot in trachea and larynx, Mr. Mukherjee contends that in case of instantaneous death, soot might not be found within the trachea and larynx.

11. It is contended on behalf of the appellants that desperate bid was made to save the housewife by breaking open the door. There was clear indication that the door had to be broken open to get entry into the latrine. Had the murder been committed well inside the latrine, there would not have been any question of breaking open the door. These aspects, according to Mr. Mukherjee, escaped the attention of the Trial Judge. What the Trial Judge did was to blindly follow the observation of the doctor conducting the post-mortem examination. Since the report itself was not based on reason, no importance ought to have been attached to such a report.

12. Defending the conviction and sentence, Mr. Kazi Safiullah, learned Public Prosecutor, has submitted that imprisonment for life against the appellants has been rightly awarded for their nefarious role in murdeing the newly married wife by strangulation. Negativing the contention of Mr. Mukherjee that there was no symptoms of strangulation. Mr. Kazi Safiullah has submitted that there were enough indication that the death was not accidental of suicidal. There were marks of bruise and contusion on vital parts of the body. There was absence of soot in the trachea and larynx as well. Tongue was found protruded. There were also other symptoms as well in the body which went against the proposition that the death was either accidental or suicidal.

13. Drawing our attention to the position of the deadbody at the time of recovery. Mr. Safiullah has submitted that it was not possible for a living person to sit upright on a chair while she was still on fire. The impulse would force her to move to and fro. Listless body was found in upright position on a chair. This is possible only in the event of corpse being planted thereon. Furthermore, no effort was made by the appellant to save his wife. The appellant allowed the body to be scorched. This is also another circumstance which conclusively proves that the appellants were instrumental in causing the murder of the housewife.

14. The case rests on strong circumstantial evidence. There is also strong medical evidence to supplement the strong circumstantial evidence. Certain discernible facts and circumstances do emerge from the statements of P.W.1 Subrata Kishore Acharya Chowdhury, P.W.4 Bani Acharya Chowdhury and P.W. 5 Suprabha Kishore Acharya Chowdhury. Some revelations have also been made by P.W. 3 Binapani Acharya Chowdhury and P.W. 2 Shyamal Banerjee. The witnesses have disclosed that the housewife called Rumi Chakroborty was not leading a happy conjugal life with the appellant Ashim Kr. Chakroborty. On the date of the incident at about 15-30 hrs. the appellant and his mother came to the house of P.W.1 Subrata Kishore Acharya Chowdhury with the intimation that his daughter had committed suicide by setting herself ablaze. Acting on such information, P.W.1 Subrata Kishore Acharya Chowdhury, P.W.4 Bani

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