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Tapan (Tappu) Bhowmick vs The State Of West Bengal on 7 May, 2018

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side

BEFORE:
The Hon’ble Justice Aniruddha Bose
And
The Hon’ble Justice Asha Arora

C.R.A. 362 of 2005

Tapan (Tappu) Bhowmick
Vs.
The State of West Bengal

Advocate for the appellant : Mr. P.S. Bhattacharyya

Advocates for the State : Mr. Subir Banerjee, Ld. A.P.P.
Mrs. Kakali Chatterjee,
Mr. Pratick Bose.

Heard on : 07.012.2016, 08.12.17 03.05.18

Judgement on : 7th May, 2018.

ANIRUDDHA BOSE, J. :-
1.

The appellant has been convicted of offences under the

provisions of Sections 302 and 498A of the Indian Penal

Code, 1860 and sentenced by the Trial Court to suffer

rigorous imprisonment for life for the former offence and

imprisonment of similar character for three years in respect
of the latter. Sentence of the appellant includes direction to

pay fine of Rs.4,000/- as punishment for each of the

offences of which he has been convicted. In default thereof,

further rigorous imprisonment for six months has been

prescribed for his conviction under Section 302 of the 1860

Code and for forty days in relation to the other offence.

Charge against the accused is having committed murder of

his wife, Sabita Bhowmick as well as treating the victim

after their marriage with cruelty by torturing her both

physically and mentally.

2. Case of the prosecution, which was sustained by the Trial

Court, is that while accompanying his wife to a “Jatra” (a

form of indigenous theatre) at “Haripat” on the night of 2nd

January, 2002, the appellant had attacked her on the way

and injured her head and several other parts of the body

with bricks. Their matrimonial home was at mouza Uttar

Lou Chapra under Dinhati Police Station in the district of

Cooch Behar. Subsequently he took the injured victim to

their matrimonial home and there she was confined in a

room locked from outside. The victim’s groaning sound in
agony had alerted other relatives who used to reside close

by. The lock was broken and the injured victim was initially

taken to the nearby primary health centre at Bamanhat,

from where she was transferred to Dinhata sub-divisional

hospital on 3rd January, 2002 on being referred by the

attending doctor at that primary health centre. The victim

succumbed to her injuries in the sub-divisional hospital

after brief treatment at 11.35 A.M. on the same day. The

attending doctors at both the clinical establishments have

given evidence that the victim had told them that she was

assaulted by the appellant. The autopsy surgeon, Dr. D.K.

Khara (P.W. 13) in the post-mortem report opined

hemmorrhagic necrogenic shock, ante-mortem in nature to

be the cause of death of the victim. There was no

observation by the autopsy surgeon as to whether the

victim’s death was homicidal or accidental nature. Another

doctor, Ratan Barman (P.W. 26) who had examined the

patient at the sub-divisional hospital, stated in his

deposition, after explaining the nature of injuries suffered

by the victim that such types of injuries might be inflicted
by hard instruments. In cross-examination, however, he

also stated that “such injury might be inflicted by sudden

falling on bed….” The case was started on the basis of a

written complaint of one Kanak Ranjan Roy (P.W. 2) on 3rd

January, 2002 itself. In the written complaint he described

himself as Upa pradhan of the local gram panchayat. The

complaint was received at 22.35 hours on the night of 3rd

January 2002 and in this complaint the appellant was

named as the assailant.

3. There was no eye-witness to the actual act of assault.

Finding of guilt and conviction by the Trial Court is based

on circumstantial evidence. The Trial Court has primarily

relied on statements of the victim narrated by two medical

practitioners treating her, by which she attributed her

injuries to assault by her husband, the appellant. Such

statements of the victim were in the nature of dying

declarations. These two medical practitioners were Dr.

Amitava Barman (P.W. 23), who at the material point of time

was attached to the Bamanhat primary health centre and

Dr. S. Mandal (P.W. 25). The latter treated the victim at the
sub-divisional hospital. The defence stand before the Trial

Court was his innocence and it was emphasised that he was

absent from the place of occurence at the material time. In

his reply to examination under Section 313 of the Code of

Criminal Procedure, 1973, the appellant took a stand that

he had been implicated in a false case and that he was not

at home. Altogether 31 witnesses were examined by the

prosecution, of whom 12 were witnesses of fact. We shall

deal in this judgment the evidences of those witnesses only

which we find relevant and necessary for adjudication of

this appeal. There were several routine witnesses and also

witnesses whose depositions are inconsequential and we

shall avoid referring to their depositions in this judgment.

The father of the appellant Kishtish Chandra Bhowmick

(P.W. 3) and a brother of the appellant Gourango Bhowmick

(P.W. 4) had made statements which were recorded under

Section 164 of the 1973 Code and in such statements

(exhibits 2/3 and 3/6), as recorded they sought to implicate

the appellant by stating that both of them had heard the

victim saying that she was assaulted by her husband. Both
of these witnesses, however, were declared hostile. The

P.W. 3 denied giving any statement before the Magistrate

whereas the P.W. 4 in his examination-in-chief proved his

signatures made on the statement but he deposed that the

statement was given to him before the Magistrate. None of

them repeated making such statements in their depositions

in course of trial. Tamal, the son of the appellant and the

victim also deposed as prosecution witness (P.W. 1) but

again was declared hostile. Altogether seven witnesses were

declared hostile, being P.W. 1, P.W. 3, P.W. 4, P.W. 5 –

Basana Bhowmick (wife of another brother of the appellant),

P.W. 7 – Paresh Chandra Bhowmick (an uncle of the

appellant) and P.W. 8 – Tapan Paul (owner of a grocery shop

near the location where the act of assault was meant to

have had taken place).

4. Among the other witnesses of fact, P.W. 6 (Dipak Basak)

was the brother of the victim. The other witnesses of fact

are residents of the same or nearby localities and we do not

find much significance in relation to their evidence. Three

seizure lists were made exhibits, of which exhibit12/3 being
notings and the bed-head ticket at the sub-divisional

hospital is of importance so far as this appeal is concerned.

A document purporting to be “terms of settlement”, which

was seized on 4th January, 2002 seeking to lay down

compromise terms in marital dispute between the appellant

and the victim has also been referred to by the learned

counsel for the State. This document does not bear any

date of execution and in our view has little impact on this

appeal, except that the same points to certain past disputes

between the appellant and the victim. The other items

seized were two pieces of broken bricks and three pieces of

broken red coral bangle. The broken bricks and pieces of

coral bangle were seized from the place of initial occurence

on 4th January 2002, and the seizure list records Uttar

Lowchapra (Bamanhat) as the place of seizure. In his

deposition, Probin Pradhan (P.W. 27), who at the material

time was the investigating officer described the place of

seizure of these bricks and broken bangles to be “near

Bamanhat Railway Station.” Wearing apparels and broken

pieces of shell bangles formed subject-matters of another
seizure list. But these materials again are of not much

significance so far as present appeal is concerned. Two

inquests were made at the sub-divisional hospital on 3rd

January, 2002 by the Executive Magistrate Amit

Roychowdhury (P.W. 28) and Dipak Kumar Panja an A.S.I of

police at the S.D. Hospital and these inquest reports were

also made exhibits.

5. The Trial Court primarily relied on evidence of the two

medical practitioners, which included narration of the

victim on the aspect of cause of her injury to them as well

as the depositions of P.W. 1, P.W. 3 in coming to the finding

of guilt of the appellant. The Trial Court opined that it was

only the accused/appellant who had the opportunity to be

with the victim and it was he alone who could assault her

on the night of occurence. Broadly, the last seen together

principle was applied.

6. Mr. Partha Sarthi Bhattacharyya, learned counsel for the

appellant has assailed the judgment of conviction and the

order of sentence on the ground that none of the charges

were proved beyond reasonable doubt. He has submitted
that the entire case is based on hearsay evidence and the

F.I.R. maker (P.W. 2) has also not disclosed from whom he

heard of the incidence. Next, his submission is that there is

also no evidence as to who took the victim to the hospital.

According to Mr. Bhattacharyya, the appellant was not

present at the place of occurence and he pointed out various

flaws in the factual narrative of the prosecution witnesses

through which the case against the appellant was

constructed by the prosecution before the Trial court. He

also wants us to disbelieve the two doctors, P.W. 23 and

P.W. 25 on the aspect of deposing on dying declaration of

the victim, having regard to the state of her physical and

mental condition. The State, however, defended the

judgment and Mr. Subir Banerjee, learned additional public

prosecutor appearing for the State has argued that there

was sufficient evidence before the Trial Court to implicate

the appellant in the two offences with which he was

charged.

7. We shall first examine the question as to whether the

appellant was present or not at the place of occurence as
his absence is the main defence of the appellant. P.W. 3,

his father and P.W. 4, his brother deposed that the

appellant was at Dhubri at the material point of time. But

the F.I.R. maker, P.W. 2 in his deposition stated that he had

seen the couple that is the appellant and the victim going to

see the jatra at Haripat. No contrary suggestion was given

to him in his cross-examination. He is a neutral witness and

we do not find any reason to disbelieve him on this count.

Moreover P.W. 3, being the father of the appellant in his

cross-examination by the defence also stated that his four

sons including the accused Tapu Bhowmick were at the

cremation ghat. There is no independent evidence adduced

by the appellant to sustain his alibi of being at Dhubri. The

appellant has failed to establish that he was in Dhubri on

the night of occurence. On the other hand, a neutral

witness has given evidence that he had seen the appellant

was present with the victim on the night on which the

assault had initially been made. The sequence of events, in

terms of their importance next is discovery of the injured

victim in a locked room in her matrimonial home. P.W. 1,
has stated that at about 7 A.M. on 3rd January 2002

(referred to by him as “the day of incident”) he rushed to his

home along with P.W. 3 upon hearing “cry of my mother”

and on reaching there his “dadu” (grandfather) broke the

door and rescued his mother. Though this witness was

declared hostile, his evidence cannot be discarded

altogether on this aspect and there is no contrary

suggestion to him on this part of his deposition. He has

also stated that the victim was taken to Bamanhat hospital.

P.W. 1 was declared hostile when he deposed that he did

not state to the police about any incident relating to his

mother. But his deposition on the door being locked from

outside and being broken open has not been contradicted.

The part of the evidence, relating to breaking open of the

lock stands corroborated by the examination-in-chief of

P.W. 3. Another brother of the appellant P.W. 4 has also

corroborated the factum of breaking open of the door.

8. Now we shall turn to the evidence available as to what

transpired at the Bamanhat primary health centre. There is

a single sheet (Exhibit-12/9) with a stamp of the said health
centre showing reference of the patient with very poor

general condition to the sub-divisional hospital. There is

also indication of the injuries on this sheet and basic

treatment given to the patient. At the health centre the

victim was first attended by the P.W. 23, (Dr. Amitava

Burman) and he has proved exhibit 12/9. He was declared

hostile at the instance of the prosecution when in course of

his examination-in-chief, he stated that he could not

recollect whether he was examined by police or not. After

referring to the nature of injuries suffered by the victim, he,

inter alia, stated in course of his cross-examination by the

prosecution after being declared hostile:-

“It is a fact the Rinku Bhowmick, the

patient on her appearance before the

BPHC stated to me as her history of

assault that she has assaulted by her

husband I cannot recollect whether on

examination by the I.O. of case I stated to

police that Rinku stated to me that she

was assaulted by her husband.”

9. In cross-examination of P.W. 23 by the defence there is no

suggestion that such a statement attributed to the victim

was false. What he was cross-examined on was that such

statement of the victim did not appear in the treatment

sheet and time of examination of the patient and time of

reference of the patient to the sub-divisional hospital was

also not reflected in the treatment sheet being exhibit 12/9.

P.W. 25 is Dr. S. Mondal, who had treated the victim at the

first instance at Dinhata sub-divisional hospital. The

exhibited documents pertaining to treatment of the victim at

the sub-divisional hospital comprise of several sheets or

pages. The first two pages are printed forms carrying the

heading “RECORD OF IN-PATIENT”, which has been

marked exhibit 12/1. The next one is exhibit 12/2, which

include notings on patient condition and treatment advice

on a single sheet, which has been proved by P.W. 26, Ratan

Barman, who had made those notes. This has been referred

to by P.W. 26 as bed-head ticket. The next part of the bed-

head ticket on the reverse sheet of exhibit 12/2 has been

made exhibit 12/3 and has been proved by P.W. 25, who
has stated that the same was prepared and signed by him.

This sheet carries a hand written sentence on top of the

page:-

“H/o Physical assault by Husband

(as stated by the wife pt.)”

Rest of exhibit 12/3 again records condition of the patient

and treatment advise. The said notings also carry a request

for the ward-master to arrange for dying declaration and

endorsement of the ward-master of having taken note

thereof has also been proved by him, being exhibit 12/5.

10. As regards the said recordal, in his cross-examination by

the defence, P.W. 25 stated:-

“Not a fact that the history as stated by

the patient about assault done by her

husband is not correct. I also do not find

any name of witness in the report in

whose present the statement of history of

assault was stated by the patient to me.”

11. On behalf of the appellant question was raised on the cause

of death of the victim, referring to the evidence of the autopsy
surgeon, post-mortem report and evidence of P.W. 26 to the

effect that the injuries suffered by the victim could be caused

by sudden falling on bed. The other flaws in the prosecution

case pointed out by Mr. Bhattacharyya are that the treatment

sheet of the primary health centre did not carry any

endorsement by the attending doctor about assault on the

victim by her husband. So far as endorsements made on the

bed-head ticket of the sub-divisional hospital are concerned,

his submission is that mere recordal of a statement attributed

to the victim ought not to be made the basis of conviction as

there is no proper disclosure on maker of such statement. Mr.

Bhattacharyya has emphasised on failure to have formal

recordal of dying declaration in spite of advise of the attending

doctor. He has relied on a decision of the Hon’ble Supreme

Court in the case of Mayur Panabhai Shah Vs. State of

Gujarat [(1982)2 SCC 396]. In this authority, it has been

held by the Hon’ble Supreme Court that even where a doctor

has deposed in Court, his evidence has to be appreciated like

the evidence of any other witness and there is no irrebuttable

presumption that a doctor is always a witness of truth.

12. We have disbelieved the defence story that the appellant

was not present at the time of occurence of the incident. We

have already given our reasoning for doing so. After the

couple (appellant and the victim) was seen together by the

P.W. 2, we find that there is direct evidence of the victim

found alone in a locked room with grave injuries. No evidence

has come forth from the defence to explain how the victim was

found locked from outside in a room in her matrimonial home.

13. What are the circumstances which implicate the

appellant/accused in the offence he was charged with? We

have to ignore the statements of P.W. 3 and P.W. 4 recorded

under Section 164 of the 1973 Code. In their depositions these

two witnesses did not confirm their statements and in fact in

substance denied having made them. We have earlier dealt

with the nature of their denial. The first medical practitioner

to attend the victim was P.W. 23, who at the material point of

time was attached to the aforesaid primary health centre. He,

after being declared hostile, in cross-examination by the

prosecution stated that it was the victim on her appearance

before the health centre had told him the history of assault by
her husband. In the treatment sheet, however, this was not

recorded. Though the treatment sheet or bed-head ticket at

the sub-divisional hospital does not record who had stated

about physical assault upon the victim but this lacuna has

been explained by the P.W. 25. At the said sub-divisional

hospital, however, in spite of advise or request, the dying

declaration of the patient was not recorded in a formalized

manner. There is no explanation from the prosecution as to

why it was not done. We, however, find that the victim was

admitted on 3rd January 2002 at 9.55 hours and she had

expired at 11.35 A.M. on the same day. In the sub-divisional

hospital, she survived only for one and half hours. For these

reasons, we do not think we shall reject the statements of two

medical practitioners from two clinical establishments

narrating the same statement of the victim by which the

victim attributed the assault to her husband. Both these

witnesses stuck to their statements in their cross-examination

and we do not find any reason to disbelieve them, even if we

treat them as ordinary witnesses, as has been mandated by

the Hon’ble Supreme Court in the case of Mayur Panbhai
Shah (supra). They are neutral witnesses and there is no

evidence of any enmity of these witnesses to the

appellant/accused. The autopsy surgeon did not specifically

state that the injuries were homicidal in nature. But there is

sufficient evidence that the injuries suffered by the victim

could be inflicted by hard instrument and the patient had died

due to such injuries. This transpires from the deposition of

P.W. 26 Dr. Ratan Barman, who had also attended the victim

at the sub-divisional hospital. In his cross-examination he

stated that such injury could be inflicted by sudden falling on

bed. But this possibility does not rule out the other part of

his evidence about the possibility of the injury being inflicted

by hard substances. The autopsy surgeon (P.W. 13) had also

stated that the types of injuries suffered by the victim could be

inflicted by the hit of “hard substance” but was inconclusive

in his opinion as to whether death of the victim was homicidal

or accidental. But as we have believed the depositions of P.W.

23 and P.W. 25 that the victim herself stated to both of them

in two different hospitals that she was assaulted by her

husband, we have to rule out the cause of death being
accidental in nature. There is no explanation as to why the

victim was locked in alone in her matrimonial home. All these

circumstances, in our opinion, prove beyond reasonable doubt

that it was the appellant who had assaulted the victim and the

death of the victim was caused by the appellant intentionally.

We do not find any reason to interfere with the findings of the

Trial court on this count.

14. In relation to the charge against the appellant under Section

498A of the 1860 Code, the Trial Court has relied on the

depositions of P.W. 1, P.W. 2 and P.W. 6. The Trial Court

held:-

“Now with regard to the charge U/S

498(A) I.P.C., I find in the deposition of

Tamal Bhowmick (P.W. 1) and (P.W. 2)

Kanank Ranjan Roy and (P.W. 6) Dipak

Basak that the accused was in the habit

of doing usual torture and beating

towards his wife and the accused was

found doing mercilessly and without care

and request of neighbouring people and
the same torture was admittedly found to

be done since after her marriage till the

incident of murder committed by the

accused at his place.”

15. We have gone through the depositions of the respective

witnesses and find no error in the judgment of the Trial Court

in convicting the appellant under the aforesaid provisions. We

accordingly dismiss the appeal.

16. Let Lower Court records with a copy of this judgment be

sent down to the learned Court below immediately by the

department.

17. Urgent Photostat certified copy of this order be given to the

parties, if applied for, on priority basis on compliance of all

formalities.

I agree

(Asha Arora, J.) (Aniruddha Bose, J.)

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