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Sunil Singha-vs-State Of West Bengal on 1 December, 2006

Calcutta High Court Sunil Singha-vs-State Of West Bengal on 1 December, 2006
Equivalent citations:2007 (4) CHN 627, 2007 CriLJ 516
Author: P S Datta
Bench: P N Sinha, P S Datta

JUDGMENT

Partha Sakha Datta, J.

1. This is an appeal against the judgment and order dated 28-11-1997 passed by the learned Additional Sessions Judge, First Court, Bankura convicting the appellant on account of the offence under Section 302, IPC and sentencing him to suffer imprisonment for life with a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one year in Sessions Trial No. 3(12) of 1995 arising out of Sessions Case No. 13(9) of 1992.

2. The mother of the victim Tusurani Samanta of village Kuldangar, P.S. Bishnupur in the district of Bankura lodged an ejahar with the O.C. Bishnupur P.S. at 18 15 hours on 27-5-1991 alleging the following facts:

Her daughter Parulbala who was married to the appellant in the month of Falgoon, 1390 B.S came to be subjected to physical and mental torture by the appellant, appellant’s brother Ajit Singha and appellant’s mother Saktibala (since deceased). Sometimes she was denied food. When her daughter would come to her house she would report to her about the torture and when she (FIR maker) would go to her daughter’s-in house she would narrate to her the incidents of torture. Considering her daughter’s future conjugal life she would persuade the appellant and the members of his family to lead the family in good condition but the members of his daughter’s in law’s house without paying any heed to the advice of the village people used to inflict torture upon her daughter from time to time. On 25-5-1991 her daughter was physically assaulted in the morning without any cause and at 4 p.m. her daughter was compelled to take poison. The members of her daughter’s-in-law’s house did not take any measures for her treatment.

3. On the aforesaid facts Bishnupur P.S. Case No. 27 dated 27-5-1991 under Section 498-A/306, IPC was registered against the appellant, his brother Ajit Singha and mother Saktibala Singha (since deceased) and upon completion of investigation charge-sheet was submitted against the aforesaid three accused persons vide chargesheet No. 58 dated 7-11-1991 under Sections 498-A/302/120-B of the IPC.

4. The appellant and his brother Ajit Singha were charged by the learned Additional Sessions Judge. First Court, Bankura under Sections 498A/306 of the IPC and on these charges evidence of 14 witnesses was recorded. During the trial on 15-9-1997 the learned Public Prosecutor in-charge of the case in the learned trial Court filed a petition before the learned Judge for recasting of the charge on the ground that the evidence disclosed a case under Section 498-A/302/34 of the IPC and charge-sheet was also submitted thereunder. The learned trial Court by the order dated 15-9-1997, upon hearing both the parties allowed the prayer of the prosecution and recast the charge to one under Section 302 read with 34, IPC observing that the charge under Section 498-A, IPC was originally framed with the charge under Section 306, IPC. Accordingly, the amended charge was again read over and explained to the appellant who pleaded not guilty. Then appellant was allowed opportunity to cross-examine the witnesses which the defence did not think it necessary and accordingly further cross-examination or re-examination of the witness by the defence was declined. The followed the judgment of conviction and sentence with respect to the charge under Section 302/34 of the IPC.

5. Though 14 witnesses were examined by the prosecution it is the evidence of P.W. 1 Smt. Tusurani Samanta, the de facto complainant, P.W. 6 Smt. Durga Samanta, younger sister of the deceased and P.W. 14 Dr. D.K. Roy, the medical officer of Bishnupur sub-divisional hospital who held post-mortem examination on the body of the deceased that alone call for critical examination so as to find out whether charge under Section 302 of the IPC can be said to have been proved.

6. Before coming to the evidence of P.W. 1, P.W. 6 and P.W. 14 let us point out by way of passing reference evidence of the other 12 witnesses just to see the nature of their evidence. P.W. 2 Netai Ch. Dey attested the L.T.I, of the FIR maker in the FIR. P.W. 3 Jiten Bagdi, a member of gram sabha says that on getting the news of the death of the victim he came to the house of the appellant when the police held inquest over the dead body of the victim is his presence. P.W. 4 Guinram Dey, a member of the village of the accused was declared hostile by the prosecution on the ground that he resiled from his Section 161, Cr.P.C. statement that the victim was subjected to torture by her in-laws. P.W. 5 Sri Manik Bauri took the victim to the hospital by rickshaw. P.W. 7 Nitya Nanda Patra is a witness to the seizure of wearing apparels of the deceased against a seizure list by the I.O. (Ext. 2) P.W. 8 Sri Samaresh Chandra Dey is also a witness to the seizure of the wearing apparels of the deceased. P.W. 10 Debasish Majumdar, S.I. of police drew up formal FIR to register Bishnupur P.S. Case No. 27 dated 27-5-1991 under Section 498-A/302, IPC (Ex. 1/2). P.W. 11 Haladhar Singha scribed the ejahar (Ext. 1) as per the statement of the P.W. 1. P.W. 12 Ajit Kumar Ghosh, a constable carried the dead body of the victim to Bishnupur morgue under the order of the O.C. Bishnurpur for the purpose of post-mortem examination and identified the dead body to the doctor at Bishnupur hospital. P.W. 13 Debasish Majumdar, S.I. of Police received the written ejahar from P.W. 1 and made an endorsement on the margin of the ejahar (Ext. 1/2). P.W. 9 Sri S. Ansari is the I.O. of the case.

7. P.W. 1 Smt. Tusarani Samanta says that her daughter Parulbala who was given in marriage with the appellant in the month of Falgoon, 1390 B.S. was tortured physically and mentally by the appellant, his elder brother Ajit Singha and mother Saktibala. Whenever her daughter would visit her house she would narrate how she was subjected to be tortured by the members of her matrimonial family. One day in the month of Jaistha, 1398 B.S. the appellant administered poison to her daughter when the other two accused persons – Ajit who has been acquitted by the learned trial Court and Saktibala who was dead before the trial commenced – caught hold of her daughter. In her cross-examination she has stated that her son-in-law Sunil assaulted her daughter twice or thrice in her presence. In cross-examination she was asked whether he had stated to the I.O. that her daughter was killed by manual strangulation and the witness answered in the affirmative. Of course, she has stated in cross-examination that she did not see the accused administering poison to her daughter or strangulating her manually. P.W. 6 Smt. Durga Samanta who is the younger sister of the victim says that on 10th of Jaistha, 1398 B.S. her sister died and at the noon of that day when she had been to her sister’s matrimonial house and found the two accused persosn – the appellant and Ajit Singha along with their mother dragging her sister from the first floor. In cross-examination she had stated to the I.O. that she found the accused persons along with their mother dragging her sister from the first floor to the ground floor.

8. P.W. 14 Dr. D.K. Roy who held postmortem examination over the body of the deceased in connection with U.D. Case No. 68/91 dated 25-5-1991 on 25-5-1991 found the following injuries:

(i) Multiple injuries and bruises seen over face (right side).

(ii) Multiple injuries and bruises on the right side of neck.

(iii) Multiple injuries and bruises on the right chest of upper region.

(iv) Bruises over face 3″ 2″ due to trauma.

(v) Diffused bruises over neck and anterior upper face.

(vi) Diffused swelling and haematoma over right scalp.

(vii) Swelling and puffiness of face, neck and upper chest with P.M. straining over whole face as also neck indicating strangulation over neck.

(viii) Marks of superficial linear injury of sharp container due to forceful administration of poison per mouth.

The doctor further says that on dissection he found stomach containing rice, lace fluid and slice smell of unknown poison. According to the doctor, death was due to unknown poisoning and strangulation by neck and chest and it was homicidal in nature. In examination-in-chief he has further said that ‘much poison could not be administered due to application of force and as such to be sure she was murdered by strangulation and the injury caused by sharp container was caused at the time of administering poison by application of force and other injuries were caused at the time of application of force in administering poison and also strangulation’. There was no cross-examination on the point. In cross-examination the witness was asked whether he had gone through the inquest report and the doctor answered in the affirmative but says that the inquest was not prepared by any expert and the person who held inquest might have overlooked the injuries which he could find at the time of post-mortem examination very carefully. When asked in cross-examination as to whether he sent the viscera for chemical examination but he said that it was not necessary to send the viscera for chemical examination as because he has explained the injuries he found on the body of the victim and narrated everything in his report.

9. With the evidence as aforesaid we are to find out whether the death of the victim was homicidal or not. The de facto complainant and the appellant belonged to the same village. The marriage of the victim with the appellant took place in 1390 B.S. corresponding to the Christian era 1984. She died on 25-5-1991. Thus, her marriage life subsisted for a period of about seven years or so and during the period of seven years, as we find from the FIR, she was subjected to physical and mental torture by her husband and other in laws. In the FIR it has been alleged that some time she was denied food. P.W. 1’s daughter would report to her about her woes whenever she would come to her mother’s house and whenever P.W. 1 would go to the victim’s matrimonial home the victim would narrate to her about her torture. From the FIR it could be revealed that there was at certain point of time intervention of the members of the local people but still then torture continued unabated. On 25-5-1991 she was physically assaulted by the in-laws’ as a result of which at 4 p.m. she was compelled to commit suicide. Reading between the lines of the FIR it would be apparent that P.W. 1 was not present at the matrimonial house of the deceased on 25-5-1991 when she was allegedly assaulted by the appellant and others or when she was compelled to take poison. Evidently, it was not to the knowledge of P.W. 1, since it could not be so, that the death of the victim was homicidal. P.W. 1 not telling in the FIR or in her evidence as to the cause of death is not decisive inasmuch as she was not present in the matrimonial house of P.W. 1 at the time when death was caused and accordingly she cannot be expected of having any knowledge as to how the death was so caused. But it appears from her evidence in corroboration of the FIR that her daughter was subjected to torture physically and mentally by the accused persons and that whenever her daughter would visit her house she used to narrate to her as to how she was tortured by the appellant and others. In her cross-examination she has also stated that the appellant assaulted her daughter even in her presence twice or thrice. Though in her examination-in-chief P.W. 1 has stated that the appellant administered poison to her daughter with the assistance of the other two accused persons she has stated in cross-examination that such administering poison by the appellant to her daughter was not seen by her. It is important to notice that in spite of cross-examination no contradiction could be elicited between her Section 161, Cr.P.C. statement and her evidence to Court through cross-examination of P.W. 9 who is the I.O. of the case. Therefore, having read evidence of P.W. 1 it becomes crystal clear that the victim did not live a very happy conjugal life. She passed her days in agony and mental pain. She used to be subjected to physical and mental torture. The manner of torture has been evidenced by P.W. 1 herself twice or thrice in her presence and this has come out from the cross-examination of the witness. That the death of the victim could not but be unnatural admits of no dispute. Such unnatural death is preceded by physical and mental torture. Evidence of P.W. 1 further affirmed by P.W. 6 Smt. Durga Samanta who is the younger sister of the deceased. It is her categoric evidence remaining unchallenged in cross-examination and uncontradicted by the I.O. that on 10th of Jaistha, 1398 B.S. corresponding to 25-5-1991 she had been to the matrimonial home of the deceased and found her sister being dragged by the appellant and others. It was not put to the I.O. (P.W. 9) that P.W. 6 did not make such statement to him. It was not put to I.O. that P.W. 1 did not state to him that her daughter came to be subjected physical and mental torture by the appellant and the members of his family. Therefore, it is firmly established that the victim was subjected to physical and mental torture by the appellant and other members of his family and this was not a stray occasion but a continuous one culminating in the incident of 25-5-1991 when she met with unnatural death. It is in evidence of P.W. 1 further that subsequently she came to know that the victim died due to manual strangulation and thereafter poison was poured into her mouth.

10. Thus, the question is whether the death was homicidal or not. We have noticed the evidence of the doctor (P.W. 14) who found as many as eight injuries including injury on neck and face indicating strangulation over neck. The doctor’s evidence is so explicit and through that he has left no manner of doubt in the matter of determination of the cause of death. Now two-fold challenges have been made to the evidence of P.W. 14 and the first ground is that though P.W. 14 says that on dissection he found stomach containing rice, lace fluid and slice smell of unknown poison he did not send the viscera for chemical examination. P.W. 14 has answered that in the instant case it was not necessary for him to send the viscera for chemical examination as there were injuries including the injuries on neck and also there were marks of superficial linear injury caused by sharp container due to forceful administration of poison per mouth. Evidence of this witness who is an expert in the field has practically remained unchallenged all through and since the doctor has assigned reason for not sending the viscera for chemical examination the argument of the defence against not sending the viscera for chemical examination is of no avail particularly in the context of unexplained injuries on the body of the deceased. The doctor has further said in his evidence that much poison could not be administered due to the application of force and the injury caused by sharp container in the nature of superficial linear injury was caused at the time of administration of poison by application of force. The other challenge to the medical evidence of P.W. 14 is that the report of postmortem examination as was done by P.W. 14 ran contradictory to evidence of P.W. 9 (I.O.) who held inquest over the dead body of the deceased to find no mark of external injury. The doctor was confronted with this question in his cross-examination and he has said that he had gone through the inquest report which was not prepared by any expert and the person who held inquest might have overlooked the injuries which he found and he held post-mortem examination “very carefully”. This statement of P.W. 14 has come out in cross-examination of the witness, not in examination-in-chief. There is no earthly reason to reject the testimony of P.W. 14 and we cannot say that P.W. 14 did not notice any injury at all including the mark of strangulation on the neck and the entire post-mortem report has been fabricated to suit the purpose of the prosecution. P.W. 14 is a medical officer of a sub-divisional hospital and there is no evidence of his having any animosity or enmity with the appellant or any affinity with P.W. 1 who belongs to the same village as the appellant. It is argued by Mr. Siladitya Sanyal, learned Advocate for the appellant that evidence of a doctor is an evidence of opinion and such evidence should be considered like any other piece of evidence. There cannot be any dispute with the submission. It is the established principle of law that the evidence of the doctor is an evidence of opinion, not an evidence of fact, but then such argument has in the circumstances of the case been misappropriate because of the fact that it is a case where there is no ocular evidence which could run contradictory to the evidence of P.W. 14 and if there had been a slightest amount of ocular evidence contradictory to evidence of P.W. 14 then the argument of Mr. Sanyal could have been a merited one. Evidence of P.W. 1 and P.W. 6 have clearly been evidence showing the motive for commission of the offence and if in the circumstance of the case had there been no evidence of P.W. 1 and P.W. 6 in the manner as told by them then argument of Mr. Sanyal at least could have carried a little amount of force although motive is not necessarily to be proved behind murder. As between report of inquest and the post-mortem report it cannot be contradicted that it is the post-mortem report which is done on dissection of body in a scientific manner by medical expert minutely on thorough observation of the body, while report of inquest is supposed to contain the nature of injuries and the apparent cause of death ascertained by naked eye. Here, in the instant case, P.W. 9 could not find external injury but his non-finding external injury cannot stand as positive factor against the positive evidence of the doctor who found good number of injuries on dissection of the body and on thorough observation. The scope and ambit of inquest under Section 174, Cr.P.C. is not the same as that of opinion of medical expert who holds post-mortem examination over the body of the deceased. The report of inquest is primarily intended at finding out the nature of injuries and the apparent cause of death, while the doctor who holds post-mortem examination examines the -body of the deceased from the medico-legal stand point and accordingly it is the postmortem report that is supposed to contain the details of the injuries through scientific examination. In this connection, we may approvingly refer to the Division Bench Judgment of Allahabad High Court in Baldeo v. State of U.P. 2004 Cri LJ 2686 wherein it was observed the opinion given in the inquest report does not attain finality because the dead body has to be subjected to postmortem examination which is done by medical expert and is more authentic and non-mention of injuries in detail in the inquest report cannot be considered as a circumstance against the prosecution because the investigating officer is not a medical officer. We may further refer to a decision of the Hon’ble Supreme Court in Mafabhai Nagarbhai Raval v. State of Gujarat as reported in AIR 1992 SC 218G : 1992 Cri LJ 3710 where it was observed that the doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death and unless there is something inherently defective the Court cannot substitute its opinion to that of the doctor. Mere in this reported case the observation of the learned Sessions Judge contradictory to the evidence of the doctor who held post-mortem examination was not upheld and the Hon’ble Court concurred with the view of the doctor. In the instant case there are no circumstances that can justify the rejection of evidence of P.W. 14. No suggestion was given to P.W. 14 to the effect that the death was not homicidal. P.W. 14 appears to be an impartial witness and considering his evidence we find no reason at all to hold a different view in favour of which there is no evidence.

11. The important aspect of the matter is that the death occurred of the deceased in her matrimonial home where lived the husband, his brother Ajit and mother. When the housewife was in the matrimonial home under the custody of the husband if is the duty of the husband to clarify or to offer an explanation as to how the victim died with the injuries including the indication of strangulation over neck in her matrimonial home. There has been no explanation. The learned trial Court while examining the appellant under Section 313, Cr.P.C. very elaborately pointed out to the appellant medical evidence of P.W. 14 and other evidence of P.W. 1 and P.W. 6, besides evidence of other witnesses but the appellant remained silent with the motive of shirking off his responsibility and simply said that he was innocent. It is important to notice the neither in evidence nor in examination of the accused under Section 313, Cr.P.C. has it been claimed by the defence that the death was suicidal. In the circumstance, rejection of the medical evidence was purely unwarranted and the conduct of the appellant being such as (sic) if is there is no other ground than to say that the death of the victim was caused by the appellant in his house. In Ganesh Lal v. State of Maharashtra as reported in 1992 Cri LJ 1545 it has been observed by the Hon’ble Supreme Court that it is a settled law that conduct of the accused in an offence previous and subsequent to the incident are relevant facts and when death occurs in the custody of the accused the accused was under an obligation in Section 313, Cr.P.C. statement at least to give a plausible explanation for the cause of her death but no such attempt was made. Homicidal death occurred in the house of the appellant. It can be reasonably said that it is the appellant and the appellant alone who and none but him who can be said to have knowledge as to how injury including strangulation could be noticed in the dead body particularly when there is no evidence that the victim would live at the time of her death elsewhere and not in her matrimonial house. We have sufficiently indicated above that the death of the victim was preceded by continuous assault and torture.

12. It was argued by Mr. Sanyal that there was delay in lodging the FIR. Death of the victim took place at 16.00 hours on 25-5-1991, while FIR was lodged at 18.15 hours on 27-5-1991, the distance between the place of occurrence and the police station being 14 kilometers. The question is was such delay so long as to leave room for embellishment and colouring over the actual occurrence. In the FIR it has not been claimed, as it could not be claimed by P.W. 1, that the death was homicidal or caused by strangulation. The FIR contains allegations of torture and assault on the victim and the incident of 25-5-1991 and nothing more. In the circumstance, it cannot be said that this delay has caused a set back to the prosecution case. FIR was lodged by a village illiterate lady who does not know the niceties of the law and it was scribed by another villager who is also not an expert in the legal field. Moreover, no question was put to P.W. 1 in her cross-examination as to the case of delay. If any question had been put to P.W. 1 as to the cause of delay through cross-examination and the explanation would have been unconvincing then and then only the point could have been carried some amount of force. In the circumstances, a little amount of delay in lodging the FIR does not make the prosecution case doubtful or incredible.

13. In the result, the appeal fails. We dismiss the appeal and confirm the judgment and order of the learned trial Court.

14. Criminal Section is directed to transmit a copy of the judgment along with tile LCR to the learned trial Court forthwith.

Pravendu Narayan Sinha, J.

15. I agree.

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