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Judgments of Supreme Court of India and High Courts

Peru @ Perua Mandal & Ors vs State Of West Bengal on 27 March, 2019

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AS/AKD PA
Item 251

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Manojit Mandal

C.R.A. 243 of 2013

Peru @ Perua Mandal Ors.
-Vs-
State of West Bengal

For the Appellant : Mr. Tapan Dutta Gupta, Advocate

For the State : Mr. Partha Pratim Das, Advocate.

Heard on : March 27, 2019

Judgment on : March 27, 2019

Joymalya Bagchi, J. :-

The appeal is directed against judgment and order dated 20.03.2013 and

22.03.2013

passed by learned Additional Sessions Judge, Fast Track, 4th Court,

Malda in Sessions Trial No. 06/2011 arising out of Sessions Case No.50/2011

convicting the appellants for commission of offence punishable under Sections

498A/302/34 of the Indian Penal Code and sentencing them to suffer rigorous

imprisonment for two years each and to pay fine of Rs.1,000/- each, in default,

to suffer simple imprisonment for two months more for the offence punishable
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under Section 498A of the Indian Penal Code and to suffer imprisonment for life

each and to pay fine of Rs.5,000/- each, in default, to suffer simple

imprisonment for one year for the offence punishable under Sections 302/34 of

the Indian Penal Code with a further direction that both the sentences shall run

concurrently.

The prosecution case, as alleged, against the appellants is to the effect that

the victim, Rekha Kurmi was married to Peru @ Perua Mandal, appellant no.1

herein four years prior to the incident. A female child was born to the couple who

was aged about one and half years at the time of occurrence. Appellant no.1

demanded motor cycle as well as a share in the ancestral property of his wife. As

such demands were not made, it was alleged that the victim housewife was

subjected to torture. One month prior to the incident, the victim housewife and

her daughter were brought to her parental home. On 14.12.2009, Halder Mandal,

the father-in-law of the victim housewife came to her parental home and

requested her to return to her matrimonial home. Thereupon, the victim and her

daughter returned to the matrimonial home. On the next day i.e. on 15.12.2009

at about 2.00 p.m. in the afternoon, P.W.2, father of the victim housewife received

information that his daughter and grand-daughter are in serious condition. He

rushed to the matrimonial home of the victim and found both of them dead with

burn injuries. Over the incident, he lodged first information report resulting in

registration of Malda P. S. Case No.255 of 2009 dated 15.12.2099 under Sections

498A/304B/34 of the Indian Penal Code. In conclusion of investigation, charge

sheet was filed against the appellants. The case was committed to the Court of
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Sessions and transferred to the Court of the Additional Sessions Judge, Fast

Track, 4th Court, Malda for trial and disposal.

In the course of trial, charges were framed against the appellants under

Sections 498A/34 IPC, Sections 304/34 IPC and Section 302 of the Indian Penal

Code. To prove its case, prosecution examined 16 witnesses and exhibited a

number of documents. The defence of the appellants was one of innocence and

false implication.

In conclusion of trial, the Trial Judge by the impugned judgment and

order dated 20.03.2013 and 22.03.2013 convicted and sentenced the appellants,

as aforesaid.

Mr. Dutta Gupta, learned Counsel appearing for the appellants submitted

that there is no direct evidence showing that the appellants had murdered the

victim. On the other hand, the appellants claimed that they were not at the

house at the time of occurrence. Evidence on record also do not establish that

the appellants had tortured the victim. Hence, the conviction of the appellants is

liable to be set aside.

On the other hand, Mr. Das, learned Counsel appearing for the State

argued that the victim housewife was subjected to torture for demands of a motor

cycle and a share in her ancestral property by the appellant no.1. She took refuge

at her parental home. One day prior to the incident, her father-in-law, appellant

no.2 herein, took her back to the matrimonial home. On the next day, she and

her daughter were burnt alive by the appellants. No explanation is forthcoming

from the appellants with regard to the circumstances in which the victim
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housewife and her daughter had suffered such a ghastly end. Hence, the appeal

is liable to be dismissed.

P.W.2, Munilal Kurmi, is the father of the victim housewife and the de-facto

complainant in the instant case. He deposed that the victim was married to Peru

@ Perua Mandal four years prior to the incident. From the wedlock, a female

child viz., Shanti was born to the couple. The child was one and half years at the

time of the incident. Appellants demanded money and denied food to Rekha. She

was also driven out of their house with the child. P.W.2 sent his son (P.W. 10) to

the matrimonial home of her daughter to negotiate with the accused persons. His

daughter told him that her husband demanded motor cycle as well as share in

land. He paid Rs.5,000/- to her daughter and sent her to her in-laws house. On

14.12.2009, the father-in-law of his daughter assured him that there will be no

disturbance. On the next day at about 2.00 P.M., he received information over

telephone that his daughter and grand daughter are in critical condition. On

reaching the spot, he found her daughter and grand daughter in dead condition.

Officer-in-charge and Block Development Officer conducted inquest over their

dead bodies. He put his signature thereon, Ext.2. He lodged written complaint

which was scribed by P.W.13, Ext.3. He proved his signature, Ext.2.

P.W.10, Uttam Kurmi, is the brother of the victim housewife. He

corroborated his father, P.W.1 that Rekha was married to Peru @ Perua Mandal

and a female child was born to the couple who was one and half years at the time

of the incident. The accused persons used to demand money and misbehaved

with his sister. Peru @ Perua Mandal demanded one motor cycle. He also

demanded share in the landed property. They failed to meet such demand.
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Father-in-law of Rekha undertook that no further torture would take place and

on the previous day, Rekha was taken back to her matrimonial home. On the

next day, they received information Rekha and her daughter are in critical

condition. Police came to the spot. He signed on the inquest report.

P.W.3, Ashoke Kurmi, another relation of the victim housewife has

corroborated the version of P.W.10.

P.W.4, Rajendra Sil and P.W.5, Kapildeb Tewari are the barber and priest

to the marriage.

P.W.8, Abhishek Singha videographed the marriage of the victim with Peru

@ Perua Mandal.

P.W.6, Sharmila Roy is a neighbour. She deposed with regard to demand of

motor cycle and other articles by Peru @ Perua Mandal. She also deposed that on

the day prior to the incident, father-in-law of Rekha had taken her back to the

matrimonial home.

P.W.7, Gopal Mondal is a neighbour of the appellants. He deposed that

after marriage Peru @ Perua Mandal and his wife stayed in his own house. Dead

bodies of the victims were recovered from the house of Peru @ Perua Mandal. He

is also a signatory to the inquest report.

P.W.14, Tarun Bhattacharjee, B.D.O. held inquest over the dead bodies of

the victims. He proved the inquest report, Ext.2/2.

P.W.12, Mrinal Das, took photographs of the dead bodies of the victims. He

proved the photographs, Mat. Ext.II.

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P.W.15, Dr. Rajib Prosad is the post mortem doctor who conducted post

mortem over the bodies of Rekha and her daughter Shanti. On examination of

the dead body of Rekha, he found the following injuries;

“a) 5th and 6th degree burn injuries over the following areas:-

1) face, forehead; (2) both forearm; (3) anterior aspect of both arm and

axlia; (4) upper part of the chest and abdomen upto inguinal and pubic

area, all around the both lower limbs;”

Upon examination of the body of Shanti, he found similar injuries. He

opined that the death of both the persons were due to ante mortem burn injuries.

He proved the post mortem reports, Exts.6 and 7.

P.W.16, Sunil Kumar Roy is the Investigating Officer in the instant case.

From the evidence on record, it is well established that Rekha was married

to Peru @ Perua Mandal four years prior to the incident. From the wedlock, a

female child viz., Shanti was born one and half years prior to the incident. Peru @

Perua Mandal demanded a share in the ancestral property as well as a motor

cycle. As the said demands were not made, Rekha was subjected to torture. Due

to torture, she took refuge at her parental home. Her father-in-law Halder Mandal

intervened and assured P.W.1 that Rekha would not be tortured. Accordingly, on

14.12.2009 she returned to her matrimonial home. On the next day i.e. on

15.12.2009 at about 2.00 P.M. Rekha and her daughter Shanti suffered 5th and

6th degree burn injuries on their bodies and died. It has been argued that there is

no direct evidence that the appellants had set Rekha and her daughter on fire.

Hence, the charge under Section 302 of the Indian Penal Code ought to fail.
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I have analyzed the evidence on record in the light of the aforesaid

submission. I note that the housewife and her daughter were subjected to torture

over demands of motor cycle and a share in property by Peru @ Perua Mandal,

the husband. One day prior to the incident, she was brought back to her

matrimonial home by her father-in-law. On the next day, both the victims

suffered burn injuries and died. Indisputably, both the victims had suffered

unnatural burn injuries on the date of the incident at her matrimonial home and

died. Such injuries may either be accidental, suicidal or homicidal. There is

nothing on record to probabilise an accidental fire at the matrimonial home.

Appellant no.1 viz., Peru @ Perua Mandal, husband of the victim has not

explained the circumstances in which his wife and daughter died due to severe

burn injuries at the matrimonial home. A faint plea was raised by him that he

was not at his residence at the time of occurrence. No such suggestion was given

to any of the witnesses by the said appellant. In the course of trial, no defence

evidence was also adduced to probabilise such plea. On the other hand, evidence

has come on record that Peru @ Perua Mandal used to reside with his wife and

daughter in his house after marriage. One day prior to the incident, the victims

had returned to the said house.

Hence, there is no escape from the conclusion that the victims suffered

severe burn injuries at the house of Peru @ Perua Mandal. Evidence of P.W. 7

established the fact that the couple resided separately from the in-laws. Hence, it

was incumbent on Peru @ Perua Mandal who resided with the victims to explain

how they suffered burn injuries. He has singularly failed to do so and has raised

a false plea that he was not at the spot. Failure on the part of Peru @ Perua
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Mandal to explain the burn injuries resulting in the death of the victims and the

false plea of alibi raised by him leads to an adverse inference against the said

appellant that he had murdered the victims. This conclusion is further fortified

by the opinion of the post mortem Doctor, P.W.15 who found 5th and 6th degree

burn injuries on the bodies of both the victims probabilising a case of homicidal

burn and improbabilising the possibility of accidental or suicidal death.

With regard to the roles of the other appellants, viz., appellant no.2, Halder

Mandal and appellant no.3, Ketu @ Tetul Mandal, I find that the demand of

dowry was raised by the husband viz., Peru @ Perua Mandal and not by the said

appellants. It is true that the appellant no.2, Halder Mandal, father-in-law of the

victim housewife had intervened and sought to mediate the differences between

the couple by assuring that she would not be tortured. However, such effort

appears to have been in vain and the victim and her daughter were set on fire the

very next day by his son Peru @ Perua Mandal. Evidence has also come on light

that Peru @ Perua Mandal and his family i.e. the victims were residing separately

in his house since marriage till the inident. In this factual backdrop, failure on

the part of Halder Mandal, father-in-law of the victim housewife to prevent his

son from setting Rekha and her daughter on fire, in my considered opinion, does

not establish the prosecution case against them beyond doubt.

Hence, I am inclined to extend the benefit of doubt to the said appellants

viz., appellant Nos.2 and 3 herein and acquit them of the charges levelled against

them.

Conviction of the appellant no.1 viz., Peru @ Perua Mandal is recorded

under Section 498A and 302 of the Indian Penal Code. Sentences imposed on the
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appellant No.1, Peru @ Perua Mandal by the trial Court on the aforesaid counts

are upheld and both the sentences shall run concurrently.

Conviction and sentence imposed on the appellant No.2, Halder Mandal

and appellant no.3, Ketu @ Tetul Mandal are set aside.

The appeal is allowed in part.

Period of detention suffered by the appellant no.1 viz., Peru @ Perua

Mandal during investigation, enquiry and trial shall be set off from the

substantive sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

The appellant Nos. 2 and 3 shall be released from custody forthwith, if not

wanted in any other case, upon execution of a bail bond to the satisfaction of the

trial court which shall remain in force for a period of six months in terms of

Section 437A of the Code of Criminal Procedure.

The lower court records along with a copy of this judgment be sent down at

once to the learned trial court for necessary action.

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

on priority basis on compliance of all formalities.

I agree.

(Manojit Mandal, J.) (Joymalya Bagchi, J.)

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