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Dipak Das And Anr.-vs-State Of West Bengal on 29 January, 1997

Calcutta High Court Dipak Das And Anr.-vs-State Of West Bengal on 29 January, 1997
Equivalent citations:1997 CriLJ 2189
Author: N A Chowdhury
Bench: N K Batabyal, N A Chowdhury

JUDGMENT

Nure Alam Chowdhury, J.

1. This appeal is directed against the judgment and order dated 22nd December, 1993 passed by the learned Addl. Sessions Judge, Ist Court, Bankura in Sessions Trial No. 6(7) 1992 (Sessions Case No. 1(5) 1989) convicting the appellant No. 1 Dipak Das (A1) and his father Subhas Das (A2) aged about 70 years, Under Section 302, I.P.C. and sentencing each of them to suffer imprisonment for life as also convicting both the appellants Under Section 201, I.P.C. and sentencing ‘each of them to suffer R.I. for two years and also to pay a fine of Rs. 1000/- i.d. to suffer R.I. for a further period of one year, both the sentences are directed to run concurrently. Both the appellants have been found not guilty Under Section 498A, I.P.C. Two other accused persons placed in the same trial namely Abhijit Das and Sudip Das who are the brothers of Dipak Das (A1) and the sons of Subhas Das (A2) were acquitted of all the charges as both Abhijit and Sudip lived separately from both A1 to A2.

2. Bereft of details, the prosecution case, is that Dipak Das (A1) son of Subhas Das (A2) of Lokpur, Bankura, was married to Chhabi Rani Das (since deceased), a daughter of Ranjit Sarkar (P.W. 13) of Alijhara, P.S. Indpur, District-Bankura in the month of Falgun 1388 B.S. Ranjit Sarkar (P.W. 13), father of the deceased Chhabi Rani Das was a poor man and on account of his inability to give any dowry at the time of Chhabi’s marriage, Chhabi was subjected to ill-treatment by the appellants and the two brothers of appellant No. 1 in her matrimonial home. It is the further prosecution case that on 14-8-1987 at mid-night these two appellants and the other two accused persons who have been acquitted by the trial Court, killed Chhabi and set fire to her body after pouring kerosene oil on her. On 15-9-1987, in the morning P.W. 3 Parimal Chand, Sub-Officer of Bankura Fire Brigade, on receipt of a call from Dipak (A1) to the effect that fire broke out in his house, went to the house of Dipak and found the dead body of Chhabi extensively burnt, lying on the floor of the garret of the house and Sri Parimal Chand (P.W. 3) informed the Police Station about this burn case, Dipak (A1) thereafter went to his father-in-law’s house and informed there that Chhabi committed suicide by setting herself on fire, P.W. 1 Durgadas Sarkar, a brother of the deceased, immediately went to the house of Dipak (A1) at Lokepur and found the burnt body of the deceased Chhabi in the garret of the house and found that the police had already reached there and Bankura P.S. U.D. Case No. 236/87 dated 15-8-87 was started over the said incident, P.W. 15 S.I. S.P. Garai, I.D. of the case, held inquest over the dead body of the deceased Chhabi and thereafter sent the dead body to the morgue. P.W.14, Dr. J.N. Dey held the P.M. examination on the dead body of Chhabi on 15th August, 1987, and opined that the death of Chhabi was due to the effect of head injuries, ante-mortem and homicidal in nature which might have been caused by some hard and blunt weapon and the burn injuries on the dead body of Chhabi were post-mortem. P.W. 1 Durgadas Sarkar brother of Chhabi, submitted the written complaint (Ext. 2/1) to the O.C. Bankura P.S. pursuant to which P.W. 9 S.I. Dharmadas Chatterjee, O.C. of Bankura P.S. drew up the formal F.I.R. Ext. 2/3 and started Bankura P.S. Case No. 12/45 dated 16-8-87 and this case was also endorsed to P.W. 15 S.I. Sastipada Garai for investigation and P.W. 15, after completion of investigation submitted charge-sheet against the appellants and two other brothers of A1 (who have been acquitted by the trial Court) Under Sections 498A/302/201/34, I.P.C. against all the four accused persons placed on the trial.

3. The plea of all the four accused persons at the trial is one of denial and innocence. The defence case, as appears from the trend of cross-examination and the examination of the accused persons Under Section 313 Cr.P.C. is that no dowry was demanded at the time of marriage of Chhabi with A1 and Chhabi was never subjected to tortures in her matrimonial home and the relation of all the accused persons placed in the trial with the deceased’s parents and other inmates of their house was never strained and whenever the deceased’s mother P.W. 12 Narayani Sarkar would fall sick she would undergo treatment in Govinda Nagar hospital staying in the house of A1. It is also the defence case that the deceased’s brother Durgadas Sarkar (P.W.1) had a shop at Lokepur near the house of A1 and in the matter of running the shop P.W. 1 would get immense help from A1 and in the matter of recovery of possession of some dispossessed land of the deceased’s father P.W. 13 Ranjit Sarkar, A1 helped a lot. It is the further defence case that on 14-8-87, at night, the deceased Chhabi set herself on fire in the small space near the upper end of the staircase of the house of A1 and committed suicide and A1 first gave the information of this unfortunate incident to the local Fire Brigade and as a matter of fact, the de facto-complainant Durgadas (P.W.1), demanded some money from A1 for the death of Chhabi but A1 refused to oblige him and for this refusal this case has been falsely engineered against the appellant No. 1, his father and his two brothers who are absolutely innocent.

4. Charges under Sections 498A, 302/34 I.P.C. and 201/34 I.P.C. were framed against all the four accused persons placed in the trial in which all the four accused persons were acquitted of the charge Under Section 498A I.P.C. A1 and A2 have been convicted Under Section 302 and 201 I.P.C. but the other two accused persons, the two brothers of A1 have been acquitted of both the charges.

5. Prosecution examined 15 witnesses in support of the prosecution case. It is obvious that there is no eyewitness in this case and the prosecution case rests on circumstantial evidence.

6. P.W. 1 is a brother of the deceased and lodged the F.I.R. scribed by his cousin P.W. 2 who was declared hostile by the prosecution as P.W. 2 stated in his examination-in-chief that he did not know how Chhabi was treated and how Chhabi died. P.W. 3 was a Sub-Officer of Bankura Fire Brigade at the relevant time and on 15th August, 1987 Dipak (A1) gave him a call to got to his house informing that fire had broken out in his house and he went to the garret of the house and found the deadbody of a woman lying on the floor and the major portion of the dead body was found to have been burnt. He also identified A1 at the dock. In cross-examination he stated that the garret was actually a staircase and one end of the staircase remained closed and they went tot he P.O. through the staircase and from the staircase they went to the roof and from the roof they went to the P.O. and he gave an information to the P.S. in respect of this burn case. P.W. 4 is the maternal uncle of the deceased. He was also declared hostile as he stated in his examination-in-chief that he did not know anything about any incident of torture on the deceased in her matrimonial home and Chhabi did not tell him anything in that regard and he had heard that by sprinkling kerosene on her person she set herself to fire. P.W. 5 whose house is on the opposite side of the house of A1 and who is also a relative of the deceased was also declared hostile as he stated in his examination-in-chief that Chhabi was treated well in her matrimonial house and he did never hear any quarrel between Chhabi and the accused persons and he had heard that Chhabi was burned and she died. P.W. 6 another resident of the village of the appellants was also declared hostile as he stated in his examination-in-Chief that he did not know whether Chhabi was married to Dipak. In cross-examination by the prosecution he stated that he was not examined by the I.O. and in cross-examination on behalf of the accused he stated that the house of the accused is far away from his house. P.W. 7 is also a resident of Lokepur and he was also declared hostile by the prosecution and in cross-examination by the prosecution he stated that he was not examined by the I.O. P.W. 8 was the O.C. of Bankura P.S. at the relevant time. He received the prepared written statement (complaint) and started Bankura P.S. case No. 12/145 dated 16-8-87, drew the formal F.I.R. and endorsed the case for investigation to P.W. 15 P.W. 9, a police constable attached to Bankura P.S. carried the deadbody of Chhabi Rani to the Bankura morgue and identified the same before the doctor. P.W. 10 a sub-inspector attached to Bankura P.S. received the information of a case of setting of fire and burning of one woman from an Officer of Fire Brigade with staff on 15-8-87 at 4.35 hours in a house of Lokepur and informed the O.C. and Bankura P.S. U.D. Case No. 236/87 was started. P.W. 11 is also a resident of the village of the accused and he was also declared hostile by the prosecution and in cross-examination by the prosecution he stated that he was examined by the I.O. P.W. 12 is the mother of the deceased. She stated in her examination-in-chief that for about 1 1/2 years after marriage Chhabi was treated well in her matrimonial home but thereafter she was subjected to torture including assaults by the accused as because her husband did not give any dowry at the time of Dipak’s marriage and whenever Chhabi would come to their house she would tell those things to them and once she had seen Dipak coming to assault Chhabi with an iron rod and in her presence. Dipak asked her daughter to go back to her house and the father-in-law of the deceased and her brothers-in-law would also abuse her daughter in her presence and on 29th Shraban four years back she came to know that her daughter was burnt and she died and the accused persons burnt her to death. (But P.W. 15 I.O. stated in his cross-examination that P.W. 12 did not state before his that whenever Chhabi would come to their house she would report to her and her husband that she was subjected to tortures inflicted by the accused and she also did not state before him that once she saw Dipak going to assault Chhabi with an iron rod.) In cross-examinations she stated that she did not know whether Chhabi’s children were school-going. She however staled that at the time of delivery of two children of Chhabi she went to Chhabi’s matrimonial home and both the children of Chhabi are caesarean babies and at the time Chhabi’s appendicitis was operated upon, she did not go to Chhabi’s matrimonial home. She also admitted that when she was admitted to Govindanagar hospital, Dipak (A1) would look after her and she visited the house of the accused about one year and a half prior to the death of Chhabi. She also admitted that her sister Mana made an attempt to commit suicide and her another sister died of burn injuries but she denied that she made an attempt to commit suicide by fastening a “Kalsi” (pitcher) round her neck in a pond. She also stated that P.W. 1 Durgadas had a shop at “Lokepur — More” and since the death of Chhabi that shop ceased to exist and the accused did not render any help to P.W. 1 to run that shop and at the relevant lime there were seven adult members in the house of the accused and it was her assumption that the accused persons burnt the deceased to death and it was not told by anybody to her.

7. P.W. 13 is the father of the deceased. In his examination-in-chief he stated that he suspected that the accused persons were behind the death of his daughter Chhabi. In cross-examination he stated that he had three bighas of land and no business. He also stated that after the marriage of Chhabi, a shop was opened by Durgadas (P.W. 1) at “Lokepur-More” and the accused persons did not help Durgadas by giving any cash to run that shop but since the house of the accused was near the shop of Durgadas they helped to run the shop in some other manner and before opening of the shop by Durgadas he would meet the expenses of the family by selling land and at the time of Chhabi’s marriage he was not well off and in the year of Chhabi’s, marriage, Durgadas stayed in the house of the accused for about a year and he gave his eldest daughter in marriage to a person having his first wife who was the “Satin” of his eldest daughter, and for some months Durgadas was running a tea stall. He also stated that the staircase in the house of the accused starts from the Court yard of the house and on the roof, the staircase remains covered by a concrete structure.

The breadth of the staircase is very narrow but the height of the end of the staircase is big and there were no door-leaves at the door of the staircase on the roof. He further stated that when he would hear about the tortures from Chhabi, he did not lodge any complaint in this regard anywhere and he visited the house of the accused last time to invite the accused at the marriage of Durgadas. He also stated that in between his house and the house of the accused there is a distance of about 20/25 miles.

8. P.W.14 is the Autopsy Surgeon who held the post mortem examination on the dead-body of Chhabi on 15th August at 15.30 hrs. and he found the following injuries :-

Second and Third Degree burns (Dermo-epidermal burns and deep burns) over scalp, all sides of face, all sides of neck, all sides of both upper limbs including hands and fingers, all sides of chest, all sides of abdomen, external genital organ, both gluteal regions including perineum, both lower limbs including feet and toes. The burnt areas show no vital reactions.

On dissection.

1. Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissue of posterior part of parietal region, posterior part of both temporal and whole of occipital region covering an area of 6″ x 5″.

2. Extra dural clotted and liquid blood seen to infiltrate the tissues of whole of left cerebral hemispheres more so over occipital region. All the head injuries mentioned above showed signs of vital reaction.

Larynx and trachea-congested and intact, soot absent in the respiratory track.

Opinion :- Death in his opinion was due to the effect of head injuries described above antemortem and homicidal in nature and might have been caused by a hard and blunt weapon and are not possible by a dash against a wall or any ridge of a staircase or fall from the staircase.

9. In cross-examination he said that injury No. 2 was actually caused in consequence of the injury No. 1 and these two injuries are not separate injuries and in the instant case 100% of the body was effected by burns. He also stated that he did not find any external injury and in a case of 2nd and 3rd degree burns noexternal injury can be found. He also stated that if one hits the head with a hard and blunt substance there will be some injury on the head. But he also said that “It is not a fact that if the head is hit by some blunt substance with considerable force there will be some external injury”. He also said that such a head injury as he had found, might be caused when the head came in contact with a hard and blunt substance but the term “coming in contact with a hard and blunt substance” does not include “contact on fall on ground” and “contact on dash against the wall” and in a living body, blood will clot but in a deadbody blood will not clot in case of burn.

10. P.W. 14, the I/o stated in cross-examination that he examined witness P.W. 12, mother of the deceased and she did not state before him that whenever Chhabi would come to their house she would report to her and her husband that she was subjected to torture inflicted by the accused and Narayani (P.W. 12) did not state before him that once she saw Dipak going to assault Chhabi with an iron road.

11. The Id. Trial Judge, after considering the evidence and materials on record, held that there is no eye witness in this case and there is no evidence of motive and the ingredients of Section 498A of the I.P.O. but convicted and sentenced the Appellants as above on circumstantial evidence as quoted below :-

(i) The affluent circumstance of the accused and the relative poor financial position of the parents of the deceased gave rise to a situation in which all was not well with the deceased and other inmates of her matrimonial home.

(ii) The house in which the tragic incident took place was in the exclusive possession of accused Dipak Das. accused Subhas Das and other family members.

(iii) The incident took place at some unearthly hour – on the intervening night of 14/ i 5th August, 1987 and it was accused Dipak Das who gave call to the Fire Brigade.

(iv) The positive opinion of P.W. 14 – who conducted the autopsy on the deadbody of the deceased – is that the death was due to the effect of head injuries and the burns were post-mortem …one of the symptoms on which he based his opinion having been absence of soot in the respiratory track.

(v) False plea of suicide set up by defence and the conduct of the accused feigning innocence. The theory of alternatives or suicide positively ruled out by medical evidence.

12. Since it is a case of unnatural death of a housewife by burning, we have scrutinised the evidence and materials on record very carefully.

13. Admittedly there is no eye- witness in this case. Oral evidence does not support the prosecution case, on the contrary goes against the prosecution case. Two brothers of the husband of the deceased housewife who lived in separate houses have been acquitted by the Ld. Trial Judge of all the charges. The two Appellants, before this Court have also been acquitted by the Ld. Trial Judge of the charge Under Section 498A of the I.P.C.

14. We have also considered the circumstances enumerated by the Ld. Judge on which conviction of the two Appellants has been based. We are unable to hold that disparity of the financial condition between the paternal and the matrimonial family of the victim gave rise to a situation in which all was not well with the deceased and other inmates of her matrimonial home in the context of the evidence on record that no dowry was claimed by the Appellants at the time of marriage and the Appellant had borne all expenses for the caesarian operation of the deceased housewife and treatment during the delivery of her two children and the operation of her appendicitis and even the expenses for the treatment of the victim’s mother and establishment of business of the victim’s father. The neighbours of the victim’s matrimonial home, in their evidence, confirms cordial relationship between the deceased and the members of the family of her matrimonial home and no motive for murder has been found from the evidence on record.

15. Next circumstance considered by the Ld. Trial Judge is that the house in which the tragic incident took place was in the exclusive possession of the Appellants and the members of the matrimonial family of the victim, but it appears that the incident took place at the garret of the two storeyed building which is a staircase which rises from the court-yard and the upper end of the stair case is closed and the two brothers of the husband of the victim who have been acquitted by the Ld. Trial Judge lived in separate houses and A2, father of A1 is aged about 70 years lived in the house where the incident occurred and from such place of occurrence it is not possible to come to a definite conclusion and proof that the Appellants committed the murder of the deceased housewife even if it may raise the strongest suspicion against them.

16. The third circumstances mentioned by the Ld. Trial Judge is that the occurrence took place during the unearthly hour of the night and it was accused Dipak (A1), husband of the victim who gave call to Fire Brigade. This circumstance also cannot lead to any definite conclusion, as unearthly hour of the night is the most opportune moment for both homicide and suicide and the very fact that Dipak (A 1) called the Fire Brigade indicates that it was a devastating fire beside the medical evidence that the deadbody was burnt 100% from head to toe with 2nd & 3rd degree burns. Although it is difficult to predict or say definitely how a particular human being will react in a particular situation, average human nature precludes a human being from taking any risk of using fire at dead of night which might threaten the destruction of their dwelling house. Accordingly this circumstance also docs not appeal to us for coming to a definite finding that the Appellants arc guilty of the charges Under Sections 302/34 and 201/34 I.P.C.

17. Fourth circumstance which heavily weighs against the Appellants is the positive opinion of P.W.14 who conducted the autopsy on the deadbody of the deceased is that the death of Chhabi was due to the effect of head injuries and the burns were post-mortem and one of the symptoms on which he based his opinion being absence of soot in the respiratory track. We have very carefully scrutinised the evidence of P.W. 14. He deposed that he found the following injuries on the deadbody of Chhabi : –

Second and Third Decree burns (dermo-epidermal burns and deep burns) over scalp, all sides of lace, all sides of neck, all sides of both upper limbs including hands and fingers, all sides of chest, all sides of abdomen, external genital organ, both gluteal regions including perineum, both lower limbs including feet and toes. The burnt areas showed no vital reactions.

On dissection he found :–

1. Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissue of posterior part of parietal region, posterior part of both temporal and whole of occipital region covering and area of 6″ x 5″.

2. Extra dural clotted and liquid blood seen to infiltrate the tissues of whole of left cerebral hemispheres more so over occipital region. All the head injuries mentioned above showed signs of vital reactions.

Larynx and trachea-congested and intact, soot absent in the respiratory track.

Death in his opinion was due to the effect of head injuries ante-mortem and homicidal in nature.

In cross-examination he stated that injury No. 2 was actually caused in consequence of injury No. 1 and these two are not separate injuries. He also stated that the percentage of burn is actually not a vital factor and in the instant case 100% of the deadbody was effected by burns. He also stated that in the instant case he did not find any external injury and in a case of 2nd and 3rd degree burn no external injury can be found. He, however, slated that if one hits the head with a hard and blunt substance there will be some injury on the head, and such injury which he had found might be caused when the head comes in contact with a hard and blunt substance but the term “coming in contact with a hard and blunt substance” does not include “contact on fall on ground” and contact on dash against the wall”.

18. Last circumstance is a corollary to the fourth circumstance mentioned by the Ld. Trial Judge.

19. Thus the totality of the evidence found in this case is that there is no eye-witness in this case and the oral evidence strengthens and affirms the defence case but the circumstantial evidence, the evidence of P.W. 14, the autopsy surgeon raises a strong suspicion against the Appellant of inflicting one injury on the head of the victim by hard and blunt substance resulting in the death of the deceased housewife and the burning of the body is post-mortem. We are of the view that it is difficult to give a definite opinion that only one injury as found on the head of the victim could be caused by fall on the floor or on the ridge of the staircase by dissecting a deadbody 100% burnt with 2nd and 3rd degree burns. But even assuming that definite opinion is possible by medical experts, we have no iota of evidence before us that the said head-injury was caused by the Appellants.

20. In the aforesaid facts, circumstances, evidence and materials on record, the Appellants are entitled to the benefit of doubt.

21. We, therefore, allow the appeal and set aside the convection and sentence of the Appellants by the Ld. Additional Sessions Judge, 1st Court Bankura, in Sessions Trial No. 6(7) 1992 (Sessions case. No. 1 (5) 1989 and direct release of the Appellants from custody forthwith.

Nisith Kumar Batabyal, J.

22. I agree.

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