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Suresh Hazra-vs-State Of West Bengal on 12 January, 2007

Calcutta High Court Suresh Hazra-vs-State Of West Bengal on 12 January, 2007
Equivalent citations:2007 (3) CHN 244, 2007 CriLJ 1321
Author: P S Datta
Bench: P N Sinha, P S Datta

JUDGMENT

Partha Sakha Datta, J.

1. Feeling aggrieved, the appellant, the husband of the victim assails his conviction under Section 302, I.P.C. and sentence of life imprisonment with a fine of Rs. 5,000/- with default stipulation and that under Section 498-A, IPC and sentence of R. I. of two years, with fine of Rs. 2,000/-with default stipulation passed by the learned Additional Sessions Judge, 2nd Court, Nadia at Krishnagar on 29-11-2003 in Sessions Case No. 15(6) 1998/Sessions Trial Case No. III (March) 2002.

2. The elder brother of the victim Kalachand Mondal (P.W. 1) received at about 9 a.m. on 24-11-1997 three telephonic messages – one from an unknown person who did not disclose his identity, second from one Monoranj an Haider and third from one Amar Chakraborty to the effect that his sister Smt. Lopamudra Hazra was lying dead in the primary health center at Haringhata. On receipt of the messages he along with his family members had been to the house of the appellant which was found under lock and key and then proceeded to the Jagulia police outpost whereat he got the information that the dead body of his sister had been sent to Ranaghat for post-mortem examination. His sister was given in marriage with the appellant on 19th November, 1992 and after marriage pressure was mounted upon her for bringing money from her father’s house. Physical and mental torture was perpetrated upon her for non-payment of money. This was learnt from the neighbours of his sister as his sister did not inform him that she was being tortured. Having gone to the house of the accused all on a sudden on a certain day it was detected that his sister was subjected to assault as her body bore marks of injury. A sum of Rs. 1,00,000/-was given to the accused for purchase of the house wherein he had been residing at the material time, and besides that on different occasions the appellant was given Rs. 75,000/- in order to stop his order of transfer by way of payment of bribe to B.S.F. Officers. The money was paid as because besides the appellant there was no other person to look after his sister and she was then with a little child. On 21-11-1997 his sister came to his house with her daughter to bring money as was asked for by the appellant. Money could not be given to her since his father was medically treated at A.M.R.I., Calcutta on 7-8-1997 for installation of pacemaker. However, his sister was sent back on 23-11-1997 at 12.30 p.m. and on 24-11-1997 at 9 p.m. death news was received.

3. This was the FIR by P.W. 1 with the O.C. Haringhata P.S. lodged at 15.30 hours on 24-11-1997 leading to registration of Haringhata P.S. Case No. 191/97 dated 24-11-1997 under Section 498A/306 of the I.P.C. Upon completion of investigation charge sheet was submitted against the appellant under Section 498A/306/302, I.P.C.

4. The learned trial Court framed charges under Section 498A/302, I.P.C. and alternatively under Section 304B/306, I.P.C. but acquitted the accused of the alternative charges under Section 306/304B, I.P.C. while awarding conviction and thereupon sentence under Section 498A/302, I.P.C.

5. Of the 18 witnesses examined for the prosecution it is the evidence of Kalachand Mondal (P.W. 1) who is the FIR-maker and brother of the victim. P.W. 13 Fatick Chandra Mondal, father of the victim, P.W. 15 Smt. Rina Mondal, wife of P.W. 1 and P.W. 16 Raj Laxmi Mondal, wife of P.W. 13 and mother of the deceased that alone call for critical consideration, they being the relatives of the victim, while evidence of the other witnesses are of no serious consideration. P.W. 1 Kalachand Mondal says in his evidence that his sister who was married to the appellant on 19-11-1992 came to his house on 21-11-1997 and asked for a sum of Rs. 50,000/-more failing which her husband would be transferred. Prior to that the house at Barajagulia where the victim died and resided for the last time was got purchased by the money offered to the appellant for the purpose. However, the requirement of Rs. 50,000/- could not be complied with by P.W. 1 and his father as his father had been admitted in AMRI for installation of pacemaker. On 23-11-1997 his sister left for her husband’s house at about 10.30 a.m. On the night of the same day, i.e. 23-11-1997 the appellant Suresh came to his house by an Ambassador car and enquired of whether the money was given, to his wife or not and when he told him to manage the situation as his father had been ailing he left the house saying that steps would be taken since money was not paid. Then followed three telephonic calls in the morning of 24-11-1997 communicating death of his sister. In this connection an inadmissible piece of evidence has been recorded by the learned trial Court to the effect that on local enquiry he came to know that in the night of 23-11-1997 there was an altercation between his sister and her husband. No name of local person has been particularized nor any such local person has been examined. P.W. 13 Fatick Chandra Mondal, father of the victim says that some time after marriage he gave Rs. 1,00,000/- to the appellant for the purpose of purchase of a house wherein his daughter and her husband had been staying as tenant. Then, another sum of Rs. 50,000/- was given to Suresh as he had incurred loan from his colleague. Then, Suresh got an order of transfer to Kashmir. He along with his daughter and Suresh had been (sic) to the two officers of the B.S.F. wherein Suresh would work as an employee with request to cancel the order of transfer inasmuch as in the event of transfer his daughter with her little daughter would be alone with none to look after them. Then Suresh asked for a sum of Rs. 50,000/- to stop the order of transfer and he (P.W. 13) paid Rs. 25,000/- and told that he was unable to pay the rest of the amount. Due to non-payment of Rs. 25,000/- Suresh had an altercation with him and threatened him. A day prior to the death of his daughter she came to his house and told that she was dropped at Jadavpur Bus Stand by her husband with asking to bring the money which if unpaid for would follow disturbance. On the next day his daughter left his house and she was made to understand that he was unable to pay the money. His daughter informed him over telephone in the evening that her house was found under lock and key and she was waiting outside the house along with her daughter. Within half an hour Suresh came down to his place in a car when he was not present. Suresh had talked with his son (P.W. 1) and enquired of whether money was paid or not. When his son told that money could not be paid then Suresh told his son in reply that it was his last visit to their house and saying to Suresh left his house and on the next day it was revealed in the morning that his daughter died of burning in the preceding night. P.W. 15 Smt. Rina Mondal, the wife of P.W. 1 corroborates the evidence of P.W. 1 and P.W. 13 with regard to the incident of 21-11-1997 when the deceased came to her house and of 23-11-1997 when the deceased returned back. It is needless to repeat the same evidence. However, this witness has said that three months after the death of the victim the members of her family accompanied the I.O. to the house of the appellant which was under lock and key and after making it opened there was found some clotted blood on the floor in the corner of the cot and some broken pieces of glass scattered here and there inside the room. She has said that the victim came to her house on 21-11-1997 with requirement of Rs. 25,000/- and departed on 23-11-1997. P.W. 16 Smt. Raj Laxmi Mondal, the wife of P.W. 13 adduced evidence with respect to the explanation as to why the Agarwalas who were tenants under them and her another daughter Sumitra could not be brought to Court for examination. According to her evidence the Agarwalas left for their native place at Rajasthan while Sumitra had been suffering from jaundice. Significantly, this witness who is the mother of the victim has not said anything touching upon the alleged cruelty upon her daughter, alleged demand of money for the purpose of giving bribe to the B.S.F. officers, previous payment of Rs. 75,000/- by P.W. 13 and securing a house by purchase out of their fund of Rs. 1,00,000/- for her daughter and her husband. In a sense, though she is the mother of the victim her evidence is of no consequence and significance.

6. P.W. 2 Kali Chakraborty who was declared hostile by the prosecution says in his evidence that having heard shout fr.om the house of Suresh at night he woke up from sleep and found both the husband and the wife having sustained burn injuries on their persons. P.W. 3 Pran Krishna Biwas, another neighbour of the appellant who was also declared hostile by the prosecution on the ground of his having resiled from the statement given to the I. O. says in his evidence that at about midnight he found that the victim sustained burn injury with milk scattered around the stove. P.W. 4 Shipra Chakraborty, also a resident of the locality was declared hostile by the prosecution as she said that the wife of Suresh died by bursting of stove at the dead of night. P.W. 5 Ashis Poddar says that by his car the victim was taken to Jagulia hospital at the dead of night in November, 1997. P.W. 6 Suman Poddar is the brother of P.W. 5 who says that he and his brother took the wife of Suresh Hazra to Jagulia hospital by driving the car. P.W. 7 Tapas Kumar Roy who is a deed writer of Haringhata sub-registry office says that a deed in respect of a house was scribed by him in favour of Suresh and the house belonged to one Gour Pada Dutta, who as P.W. 8 says that he sold his house at Seemhat at Jagulia in favour of Suresh Hazra for Rs. 50,000/-. P.W. 9 Smt. Namita Majumder a resident of Haringhata was declared hostile as she said that the victim did not make any allegation against her husband. P.W. 10 Ram Dayal Tewari, A.S.I. of police held inquest over the dead body of the victim on 24-11 -1997 at Haringhata Primary Health Center at 10.35 hours in connection with Haringhata P. S. U. D. Case No. 33 dated 24-11-1997. The report of inquest (Ext.3) reveals that she was brought to Haringhata P.H.C. at 2.30 a.m. dead and her whole body was burnt. It is in the inquest report that the dead body was brought to Haringhata P.H.C. by P.W. 5. Suresh Hazra and Suresh’s brother Naba Kumar Hazra. It is in the inquest report further that Suresh also sustained injury and he was admitted at Jawaharlal Nehru Memorial Hospital at Kalyani. However, what we find from the inquest report is that the victim had suffered extensive burn injuries on her person and she was brought dead in the hospital. P.W. 11, A.S.I. Sankar Mukherjee is the police officer who drew up a formal FIR (Ext. 5). P.W. 12 Ganesh Sarkar was the driver of ambassador car No. WBMA690 by which the accused Suresh had been (sic) to the house of P.W. 1 and P.W. 13 but this witness who was declared hostile says that not only Suresh alone but his wife and daughter were also taken to the house of P.W. 1 at Jadavpur by his car. P.W. 14 Samir Bhattacharya’s evidence is absolutely worthless since he has not said anything at all except that he knew the parties and in cross-examination he has said that since 1991 he has been an employee under P.W. 13. P.W. 17 is Dr. Santanu Kumar Mitra who held post-mortem examination over the body of the deceased on 24-11-1997 at Ranghat sub-divisional hospital in connection with Haringhata P. S. U. D. Case No. 33/97 dated 24-11-1997 and found the victim having sustained second and third degree burns covering almost the whole of the body except the sole of the feet. This doctor did not give any opinion as to the cause of death and opinion was reserved waiting for chemical examination of the viscera, the report of which did not arrive and there is no reason as to why the final opinion as to the cause of death could not be given since this was a case of burn injuries and the doctor himself found stomach totally empty. However, he has stated in his evidence that second and third degree burn as stated above is sufficient to cause death. P.W. 18 Krishna Pada Biswas is the I. O. of the case.

7. The defence has cases of its own. The victim while staying at Raj Laxmi Vidyapith hostel at Jagulia in course of prosecution of her study fell in love with Suresh which was not to the liking of P.W. 1 and P.W. 13 and following such love affairs the marriage of the victim with Suresh could not take place in the house of P.W. 13 and they themselves got married at Tarkeswar Temple. Since it was a love marriage against wish and will of P.W. 1 and P.W. 13, P.W. 13 did not keep any information of them and it was on 23-11-1997 that the victim along with her daughter and husband came to the house of P.W. 13 so as to revive the terms but P.W. 13 turned them away. It is because of attitude of P.W. 13 that accounted for unhappy end of the life of the victim. The second defence is that the victim in order to feed her daughter was boiling milk on the stove which bursted as a result of which the victim sustained injuries and the appellant also sustained severe injuries when he came to rescue of his wife and because of his injury he was admitted at J. N. M. hospital at Kalyani. In this second line of defence it is also agitated that it was the appellant who together with P.W. 5, P.W. 6 and Naba Kumar took his wife to Bara Jagulia P.H.C. for her treatment. From the trends of cross-examination there is noticeable yet another line of defence which is very startling as it admits of payment of Rs. 1,00,000/- for the purchase of house and payment of Rs. 50,000/- in different installments by P.W. 13 to the appellant. This defence has come out in the form of a suggestion to the effect that P.W. 13 called on the appellant Suresh at Kalyani hospital demanding refund of Rs. 1,50,000/- failing which he would file a case against him and the further suggestion was that in January 2002 when the trial had started P.W. 13 and P.W. 1 called on Suresh demanding payment of the money failing which they would depose against him in the criminal case.

8. Learned trial Court did not record conviction under the alternative charges under Section 306/304B I. P.C. on theground that no satisfactory evidence was established with respect to the said two charges and the State has preferred no appeal against acquittal on these two charges.

9. Having thus recorded the facts of the case and evidence on record let us proceed to have an analysis as to whether the charges under Section 498A/302 of the I. P.C. have been established against the appellant. Be it recorded here at the outset that having considered the evidence of P.W. 1, P.W. 13, P.W. 15 and P.W. 16 we find not a single stray statement in evidence of these four witnesses who are relations of the victim to the effect that during five years of married life of the victim the victim was ever subjected to torture physical or mental at all by the appellant. Again, it is not the evidence of P.W. 1, P.W. 13, P.W. 15 and P.W. 16 that the victim ever reported to them that she was subjected to assault or torture at any point of time, the averment in the FIR that the victim sustained marks of injuries of violence or that she used to be mentally tortured have not been translated into evidence by the maker of the FIR (P.W. 1) himself in his examination in chief. This is one aspect of the matter centering round the charge under Section 498A I. P.C. Even though there is plenty of evidence that P.W. 13 once made the payment of Rs. 1,00,000/- for purchase of a house for the couple and then made payment of Rs. 75,000/- Rs. 50,000/- towards payment of loan and Rs. 25,000/- as an installment towards giving bribe to the B. S. F. officers for stopping the order of transfer – it cannot be said that these payments of huge sums of money were connected with respect to the demand of dowry at all. Significantly, there is absolutely no evidence whatsoever that the appellant had been demanding Rs. 1,00,000/- even at least once, let alone constantly from P.W. 1 and P.W. 13 through his wife for purchase of a house. Though in a stray sentence P.W. 13 has said that as required by Suresh he gave Rs. 1,00,000/-, his son P.W. 1, P.W. 15 and P.W. 16 did not at all say that payment of Rs. 1,00,000/ – was made to Suresh for purchase of the house where he had been staying as tenant only pursuant to any demand of Suresh. P.W. 1 on the other hand says that he himself and his father purchased a house. P.W. 13 repeatedly uses the word ‘they’ as he says that ‘they’ (meaning the deceased and the appellant) told him that ‘they’ intend to purchase the said rented houses and ‘they’ wanted Rs. 1,00,000/- for the purpose of purchasing the house. Therefore, it is clear that requirement of Rs. 1,00,000/- was not connected with any demand of dowry, on the contrary it was the requirement of both the deceased and the appellant and both approached P.W. 13 for the money. And it was not a demand under threat by Suresh. There is absolutely no evidence whatsoever that Suresh used to torture the victim so as to extort Rs. 1,00,000/- or Rs. 75,000/- or Rs. 50,000/- as the case may be from P.W. 13. Having read the evidence of P.W. 1 and P.W. 13 it comes to this position that in consideration of convenience of his daughter P.W.1 and P.W. 13 volunteered money for purchase of the house although the appellant’s need of money can hardly be ruled out. Though dowry has not been defined in Section 304B of the I. P.C. its definition has been provided in Section 2 of the Dowry Prohibition Act, 1961 wherein it has been held that the dowry means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties (underlining ours). In the case at hand it is crystal clear that payment of Rs. 1,00,000/- was not towards compliance with any demand at the marriage, before the marriage or after the marriage; and as there was no demand within the meaning of the Act evidently no torture was perpetrated upon the victim in respect of which there is no evidence. Subsequent payment of Rs. 50,000/- as has been spoken of by P.W. 13 was in relation to repayment of loan to B. S. F. Officer, which was incurred by the appellant and there is no evidence that the victim was subjected to torture so as to fetch Rs. 50,000/- from P.W. 13. Unquestionably these payments were not related or in connection with marriage. Now, while we engage ourselves to the stock taking of evidence as to the total amounts paid on different occasions to the appellant for different reasons three witnesses namely P.W. 1, P.W. 13 and P.W. 15 made little variation amongst themselves but there is no lack of uniformity in respect of payment of Rs. 1,00,000/- to the appellant on account of purchase of the house where the appellant had been staying with his wife as tenant. It was stated in the FIR that the victim was subjected to physical and mental torture with a view to fetching money from her father’s house but there is no evidence of P.W. 1, P.W. 13 and P.W. 15 to that effect. In the FIR it was stated that on different occasions a sum of Rs. 75,000/- was paid for the purpose of bribing the BSF officers and further demand was made on 21-11-1997 for which the victim was despatched to her father’s house. In evidence P.W. 1 has said that his father gave Rs. 75,000/- for the purpose of stopping his transfer order and on 21-11-1997 his sister came with requirement of Rs. 50,000/- more for the same purpose. This piece of evidence is, quite at variance with the evidence of P.W. 13 who says that apart from payment of Rs. l,00,000/- for the purpose of purchase of the house he paid Suresh Rs. 50,000/- on the ground that he had incurred loan from his colleague. Thereafter Suresh got, order of transfer and then Suresh required for bribing the BSF officers a further sum of Rs. 50,000/- out of which he paid Rs. 25,000/- and for the payment of rest amount of Rs, 25,000/- the victim came to his house of 21-11-1997. P.W. 15, the wife of P.W. 1 said that on 21-11-1997 the victim came with a requirement of Rs. 25,000/- and prior to that a sum of Rs. 25,000/- was given by P. W, 13 to Suresh, Therefore, from evidence of P.W. 13 and P.W. 15 it appears that apart from payment of Rs. 1,00,000/- for the purchase of house Suresh was given Rs. 75,000/- (Rs. 50,000/- for repayment of loan and Rs. 25,000/- for payment of bribe). However, this little variation in evidence of P.W. 13 and P.W. 15 vis-a-vis evidence of P.W. 1 is of no consequencer because P.W. 1 also has said that his father had given the appellant a sum of Rs. 75,000/- which also has been asserted by P.W. 13. Now, it has been admitted by P.W. 1 and P.W. 13 that the victim while staying in a hostel at Barajagulia fell in love with Suresh which is why marriage was solemnized at Tarakeshwar Temple, while marriage of the son and the other daughter of P.W. 13 took place in the house of P.W. 13. Since it was a love marriage not solemnized in the house of P.W. 13 evidently and unchallengeably there could be no demand of dowry before marriage or at the time of marriage and the amounts so far given to the appellant sub-sequently as we have seen earlier, were unconnected with any alleged demand of dowry. Even payment of Rs. 1,00,000/- on account of the purchase of the house cannot strictly be called to be on account of any demand through the victim of the appellant. Therefore, learned trial Court was quite justified in not recording conviction under Section 304B of the I. P.C. There is no evidence at all that except whatever had happened on the fateful night of 23-11-1997 there had been any quarrel between the deceased and the accused during the marriage span of 5 years or she was subjected to torture on any demand of money. Now the charge under Section 498A I. P.C. may only relate to the event of solitary turbulent night of 23-11-1997 and to no other event. Paradoxically, learned trial Court found want of evidence on the charge under Section 304B I. P.C. yet recorded guilt of 498A I. P.C. holding that the victim was visited with cruelty on demand of money. It is not the case of the prosecution that independent of demand of dowry the victim for some other reasons or no reason was subjected to cruelty. Mr. Asimesh Goswami, learned Additional Public Prosecutor for the State argued that with regard to the charge Under Section 302 of the I. P.C. we must not forget that the defence case of the victim having caught fire while boiling milk for her daughter in a stove is a false story set up with a motive of the appellant exonerating him of his culpability resulting in the murder of his housewife and it would be a case under Section 302 of the I. P.C., and if the Court is of the opinion that it was a case of suicide then also the conviction under Section 304B or Section 306 of the I. P.C. would not be misappropriate. It was argued with reference to the decision in Kalyyaperumal v. State of Tamil Nadu and also Yashoda and Anr. v. State of

Madhya Pradesh (2004) SCC (Cri) 671 : AIR 2005 SC 1411 that the incident that took place on the night of 23-11-1997 squarely falls within the term “soon before”, an expression which is found in Section 304B of the I. P.C. No doubt, it is true that the death of the victim took place within seven years of her marriage with the appellant and the death was als6 caused by burn or bodily injury or otherwise than under normal circumstances but to convict a person under Section 304B of the I. P.C. three other conditions namely (a) whether the victim was subjected to cruelty or harassment by her husband or by relatives of her husband, (2) whether cruelty or harassment was for or in connection with demand for dowry or not and (c) whether such cruelty or harassment was meted out to the victim soon before her death fall for consideration. Having considered the evidence in details we are unable to agree with the submission of Mr. Goswami that any punishment under Section 304B of the I. P.C. would really be based on any evidence whatsoever, for, we have seen that since there is no evidence of torture on account of dowry, since there has been no evidence of P.W. 1, P.W. 13 and P.W. 15 with regard to any little amount of torture (save an except what had transpired on the fateful night of 23-11-1997) we can hardly convict the appellant under Section 304B of the I. P.C. Therefore, the only point for consideration would be whether the mysterious or unnatural death of the victim on the night of 23-11-1997 can come under Section 302 of the I. P.C. or not. Mr. Goswami submitted that presence of kerosene jar half empty and half filled was Intended to hoodwink the investigating agency since as many as three gas cylinders with oven were found in the kitchen and Exhibits 8, 9 and 10 coupled with threat of Suresh In terms of evidence of P.W. 1 and P.W. 13 make it a case of homicide. Evidence of P.W. 13 to the effect that Suresh had an altercation with him when instead of Rs. 50,000/- he was given Rs. 25,000/- can in no way be interpreted to mean that because of non-payment of Rs. 25,000/- his wife was tortured at least prior to 23-11-199,7 inasmuch as there is no evidence to that effect. As we found earlier P.W. 1 never says by any evidence of legal character that the appellant tortured the victim. Exhibit 8 is a seizure list showing seizure of some ashes, ladies skirt, cigarette lighter which was on the dining table and some dried blood which was collected from the floor of the room. Learned trial Court heavily banked upon the existence of dried blood on the floor of the room which was corroborated by P.W. 15 who had said that she found clotted blood on the floor and some broken glasses scattered inside the room and the accused failed to explain as to how there could be clotted blood on the floor of the room. Existence of clotted blood on the floor of the room is pitted against two important pieces of evidence namely firstly, P.W. 17 who held post mortem examination on the body of the deceased did not say even in evidence that the death was homicidal or that besides burn injuries any injury suggestive of homicidal death was found. He only said that second and third degree burns were sufficient to cause death. The whole body was burnt except the sole of feet and this implies a strong presumption of a case pf suicide. Dr. R. K. Jhala and K. Kumar in their treatise on Dr. R.M. Jhala and V. B. Raju’s Medical Jurisprudence, 6th Edition at page 435 have made the following observation which is most pertinent in our case. The learned authors say:

While inferring from the situation of the burns, in view of the significance of situation of the burns in case of homicidal burns, areas of skin unaffected also offer valuable assistance. These often indicate possibility of obstruction (trying to prevent resistance or occluding or covering the face to prevent crying for help).*******. The areas exempted from burns are called exemption areas, similar1 areas like soles being entirely free from burns, With extensive burns elsewhere, raises a strong presumption of suicide, This is understanable as a person usually ignites herself or himself while in a standing posture. The soles in such cases, being in contact with the ground, are exempted from the effects of flames and hence no burns are found. Such was the case in a case of suicide seen by the author.

Secondly, the doctor found smell of kerosene in the body. Now, application of kerosene on the body may entail either suicide or homicide but that by itself does not become a conclusive proof of homicide. The post mortem doctor did not find any congestion in the brain and membrane and absence of congestion in the brain and cranial membrane is suggestive of the death being not homicidal. In Prabhu Dayal v. State of Maharashtra as it was

held that in the case of death by burns brain is usually shrunken and firm while in strangulation it is congested. P.W. 17 did not find brain and cranial membranes affected. These circumstances do not speak well in favour of the death being homicidal.

10. The question then naturally would remain how the victim could, if it is not a case of homicide, die in the presence of the husband who is under an obligation to say as to how the wife died. In Ganesh Lal v. State of Maharashtra as reported in 1992 Cr. L.J. 1545 : 1992 AIR SCW 1175 it has been observed that it is a settled law that conduct of the accused in an offence previous and subsequent to the incident are relevant facts. In the reported case the Hon’ble Supreme Court held that 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. Mr. Sanyal, learned Advocate for the appellant submits very strenuously that presence of kerosene oil in the body lends support to the defence case of bursting of stove while boiling milk. Mr. Goswami argues that since the defence case of the victim having suffered explosion on account of the bursting of stove is unreal it has to be assumed that the appellant was the cause of the death of the victim. Now, even if the explanation of the appellant is not considered to be real and genuine still then medical evidence is not conclusive and supportive of the theory of homicide. And coupled with this there is unchallenged evidence of P.W. 15 who had said that on 24-11-1997 P.W. 1 and P.W. 15 also came to JNM hospital at Kalyani to see the appellant who had sustained injury on his elbow joint, eye brow as well as eye lid, hair, eye, scalp on the front side, fingers of both hands and knee joint which were all burnt and there is evidence which was overlooked by the learned trial Court that the appellant had remained admitted in the hospital from 24-11-1997 to 12-12-1997. Therefore, the appellant having sustained injury is cited as a strong piece of evidence against the prosecution case of murder and it is submitted by Mr. Sanyal that the appellant sustained injury as he had come to the rescue of his wife. Therefore, the medical evidence as we have discussed above and injury of no less amount suffered by the appellant do not conform to the charge of murder although the night of 23-11-1997 was a turbulent night because in the evening of that day the deceased returned to her matrimonial home being disappointed as she could not get money as was desired by the husband on the ground of stoppage of transfer order and the husband without waiting for the wife to return came by Ambassador car to his father-in-law’s house to enquire of whether money had been sent with his wife or not. Now it is difficult to say that this circumstance or rather event that happened in the evening of 23-11-1997 can be construed as a circumstance in support of the case of murder and we strongly believe that on the grounds as aforesaid that it could not be so. Presence of gas cylinders in the kitchen may disprove any plea of bursting of stove while boiling milk for the child. Smell of kerosene oil in the body as was perceived by the doctor does not necessarily and invariably suggest the death to be homicidal. Learned trial Court observed at page 11 of the judgment that P.W. 1, P.W. 13 and P.W. 15 have corroborated one another over the demand of money from time to time on various pretext through the deceased by the accused. We, on the contrary, nowhere find in evidence of these witnesses that money was demanded by the accused through the victim from time to time and over such demand the deceased was subjected to be tortured. Strictly speaking, P.W. 1, P.W. 15 and P.W. 16 have not at all spoken anything about any demand through the deceased, and even P.W. 13 has not said that his daughter was subjected to be tortured on the demand of money. The only demand of money came for the first time through the deceased on 21-11-1997 but it is not evidence of P.W. 1, P.W. 13, P.W. 15 and P.W. 16 that the accused tortured her on demand of money for which she came to her father’s house. It is not the evidence of these witnesses that the deceased when she came to the house of P.W. 1 told them that she had been sent to fetch money on the pain of dire consequences. On the contrary she told that money was required to stop order of transfer. It is the evidence of P.W. 1 that his sister came to his house on 21-11-1997 for a requirement of Rs. 50,000/-(25,000/- according to P.W. 13 and P.W. 15) or else her husband would be transferred. Therefore, from the evidence of P.W. 1 we do not find at all that being tortured by her husband she came to take the money. Evidence of P.W. 13 cannot be taken at face value because evidently on many a points he has told lies. It is affirmed by P.W. 1 that because of his sister falling in love with Suresh while she was prosecuting study in the hostel and marriage took place at Tarakeshwar Temple. P.W. 13 denied that his daughter’s marriage took place at Tarakeshwar Temple. Secondly, P.W. 15 the wife of P.W. 1 has admitted in details that after seeing the victim she and P.W. 1 had been to Kalyani hospital to see the accused as he had also sustained injuries at different parts of the body, while P.W. 13 straghtway denies the appellant having sustained any burn injury. It is significant that P.W. 13 says that he had altercation with Suresh over payment of Rs. 50,000/- on account of stoppage of transfer of posting order but he has never said in his evidence that his daughter was subjected to be tortured on that demand.

11. Even if the theory of bursting of stove is considered to be not genuine it could be a case of suicide and it was argued that the charge under Section 306 of the I. P.C. would meet the ends of justice. Now to substantiate the charge under Section 306 of the I. P.C. there has to be evidence either direct or circumstantial that the appellant abeted the commission of suicide and since there is no evidence of the victim having been subjected to torture during the marriage life of five years on demand of dowry it will be not prudent to record conviction under Section 306 of the I. P.C. solely on the event of solitary night of 23-11-1997 when the victim died of burn injuries and appellant also suffered injuries on different parts of his body. What exactly had happened on the night of 23-11 -1997 in the house of the appellant and between him and the deceased is not known. If the medical evidence would have been in favour of death being homicidal, the charge under Section 302 I. P.C. could have been substantiated. In the decision in Harijit Singh v. State of Punjab as reported in (2006) C. Cr. L.R. (SC) 414 : 2006 Cri LJ 554 it has been held that before invoking the provision of Section 306 I. P.C. it has to be proved that the victim had been subjected to cruelty within the meaning of Section 498A I. P.C. but as discussed through scanning of evidence charge under Section 498A I. P.C. could not be brought home and death by burn injury of the victim on the night of 23-11 -1997 cannot be assumed to be the outcome of cruelty about which there is no evidence. It is to be recorded here that the learned trial Court acquitted the appellant of both the charges under Section 304B I. P.C. and Section 306 of the I. P.C.

12. Learned trial Court relied on seizure of clotted blood from the floor of the room in support of his finding that it was a case of murder. Significantly, incident took place on 23-11 -1997 while dried blood was seized on 22-12-1997. Now seizure of clotted blood from the floor of the room by itself is not sufficient to connect it with any case of murder. Neither in the inquest report nor in the post-mortem report there is any mention of any bleeding injury other than burn injury. Now, three exhibits namely (A) burnt ashes. (B) a cream coloured white printed garment and (C) floor scraping were sent to the FSL for chemical examination and exhibit 9 shows that in exhibits ‘A’ and ‘B’ as above no blood could be detected but blood was found in exhibit ‘C’ which was insufficient for serological test. Therefore, seizure of some dried clotted blood from the floor of (sic) insufficient amount is a very weak piece of evidence incapable of being connected with murder about which there is absolutely no positive or any other circumstantial evidence. And, when there fails to emerge conclusive proof of murder, benefit of doubt has to be given to the appellant.

13-14. Having regard to the facts and circumstances of the case as well as evidence on record we are of the considered judgment that the prosecution case could not be proved beyond reasonable doubt. Accordingly, we allow the appeal, set aside the judgment and order of the learned trial Court, acquit the appellant of the charges under Section 498A/302 I. P. C, set him at liberty and discharge him from bail bonds.

15. A copy of the judgment shall be transmitted to the learned trial Court along with the L.C.R. forthwith.

Pravendu Narayan Sinha, J.

16. I agree.

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