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Tapas Das & Anr vs State Of West Bengal on 3 February, 2020

Item No.146

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Bibek Chaudhuri

C.R.A. 208 of 2014
Tapas Das Anr.

-Vs-

State of West Bengal.

For the Appellant : Mr. Himangshu De, Sr. Adv.,
Mr. Avinaba Patra, Adv.,
Mr. Dipayan Kundu, Adv.

For the State : Mr. Arun Kr. Maity, ld. A.P.P.,
Ms. Trina Mitra, Adv.

Heard on : 3rd February, 2020

Judgment on : 3rd February, 2020

Joymalya Bagchi, J. :-

Sonamoni, the unfortunate housewife suffered death due to strangulation

on 27.08.2011 at her matrimonial home. She had been married to appellant

no.1, Tapas Das three years ago. During her short matrimonial life, she had been

subjected to torture. On the fateful day at 10.00 a.m., Sukumar Das, P.W.4,

father of the deceased received a phone call that his daughter was dead. He

rushed to the spot and found his daughter lying dead on the verandah of her

matrimonial home with a black spot on her neck. He alleged that Minati Das,

mother-in-law of the victim housewife used to indulge in immoral activities. As
2

his daughter protested, she was murdered. On his written complaint

Mayureswar P. S. Case No.187 of 2011 dated 27.8.2011 under Sections

498A/306/302/34 of the Indian Penal Code was registered for investigation. In

conclusion of investigation, charge sheet was filed against the appellants and

case was committed to the Court of Sessions and transferred to the Court of the

learned Additional Sessions Judge, Fast Track Court II, Rampurhat, Birbhum for

trial and disposal. Charges were framed under Sections 498A/302/34 of the

Indian Penal Code against the appellants. The appellants pleaded not guilty and

claimed to be tried. In the course of trial, prosecution examined 9 witnesses. The

appellants did not examine any witness to probabilise their defence. However, in

the course of their examination under Section 313 of the Code of Criminal

Procedure, they claimed that they were not present at the matrimonial home

when the incident occurred. The appellant no.1, Tapas Das further contended

that there was dispute between him and his wife over serving food and he had

slapped her. Thereafter, he went to the field where he received information that

the victim had hanged herself.

The trial judge, however, was not convinced with the alibi of the

appellants and relying on the evidence on record particularly the post mortem

doctor with regard to the cause of death convicted the appellants for commission

of offence punishable under Section 302/34 of the Indian Penal Code and

sentenced them to suffer rigorous imprisonment for life each and to pay a fine of

Rs.10,000/- each in default to suffer imprisonment for another one year each

more.

3

Mr. Dey, learned Senior Counsel appearing for the appellants submitted

that there is no evidence on record to show that the appellants were present at

the matrimonial home when the victim suffered unnatural death. Cause of death

has not been proved beyond doubt. Explanation of the appellants that they had

gone to the field for cultivation is most natural and plausible. Motive of crime as

reflected in the first information report i.e. immoral conduct of appellant no.2

has not been proved. Hence, they ought to be the given benefit of doubt and

acquitted of the charges levelled against them.

On the other hand, Mr. Maity, learned Additional Public Prosecutor with

Ms. Mitra submitted that there is evidence on record that the victim housewife

was ill treated at her matrimonial home. She suffered homicidal death and her

dead body was found in the verandah. Alibi of the appellants that they had gone

to the field is not probabilised by defence witnesses. On the other hand, false

explanation offered by the appellant no.1 that his wife died due to suicidal

hanging is improbabilised by the opinion of the post mortem doctor, P.W.7

reinforcing the inference of guilt against the said appellant. Hence, the appeal is

liable to be dismissed.

The death of the victim housewife at the matrimonial home due to

strangulation appears to be proved beyond doubt. P.W.4, Sukumar Das, father of

the victim-housewife deposed his daughter was married to Tapas Das. He further

deposed his daughter was subjected to torture by the appellants as they disliked

her. He received information over telephone that his daughter had died. He went

to her matrimonial home and found her lying on the verandah with a ligature

mark on her neck. He lodged first information report which was scribed by Sajal
4

Kanti Bhattacharyya, P.W.9 as per his dictation. Police came to the spot and held

inquest over the dead body. On the next day, B.D.O., P.W.5 conducted inquest.

Evidence of P.W.4 that his daughter had suffered unnatural death at her

matrimonial home on the fateful day is corroborated by other witnesses viz.,

P.W.1, P.W.2, P.W.3, P.W.6 and P.W.9.

Relying on the initial registration of the first information report under

Section 306 of the Indian Penal Code i.e. abetment to suicide, learned Senior

Counsel argued that the cause of death has not been proved beyond doubt. He

emphatically argued that post-mortem doctor, P.W.7 has not stated that the

victim had suffered homicidal death. On the other hand, death by suicidal

hanging as claimed by appellant no.1 in his examination under Section 313 of

the Code of Criminal Procedure appears to find resonance from the aforesaid

circumstances.

I have given anxious consideration to such submission. Opinion of post

mortem doctor would ordinarily prevail over the views of lay persons with regard

to the cause of death. Prior to post mortem examination, inquest was held over

the body of the victim by the investigating officer, P.W.8 (Ext.1/1) and Executive

Magistrate-cum-B.D.O., P.W.5 (Ext.2). In both the inquest reports (Ext.1/1 and

Ext.2), a ligature mark around the neck of the victim has been noted.

P.W.7, Dr. Himadri Haldar, post mortem doctor on examination of the body

found the following signs:-

“1. Rigor Mortis present;

2. Haemorrhagic spot on both eyes;

3. Frothing from mouth;

4. Signs of faecul discharge from anus.

5

I also found- Ligature mark on head, the mark was encircling the
neck below the level of thyroid cartilage with obliquity upwards. No
mark of knot is seen. Bruising on the edges of the ligature mark was
seen. No other mark of injury in part of the body was detected on
external examination as well as by dissection.
Larynx and Trachea was congested and the hyoid bone was
intact. No mark of dribbling of Saliva was seen.”

Upon analysis of the aforesaid signs the doctor opined that the death was

due to strangulation ante-mortem in nature. There is hardly any cross-

examination with regard to such opinion of the post mortem doctor.

Death due to strangulation is mostly homicidal in nature.1 Accordingly, I

am of the opinion that the forensic evidence on record has clearly ruled out a

case of a suicidal hanging as contended by appellant no.1 in his examination

under Section 313 Cr.P.C. and establishes a case of manual strangulation

resulting in death.

In the light of the evidence on record it is clear that prosecution has been

able to prove the following circumstances against the appellant no.1:-

a) Appellant no.1 was married to Sonamoni, the victim housewife;

b) On the fateful day she died due to effect of manual strangulation at
her matrimonial home;

1

See Modi’s Medical Jurisprudence Toxicology; Twenty-Second Edition, pp. 269-270…

Differences Between Hanging and Strangulation

The differences between hanging and strangulation are given below in tabulated

form:

Hanging Strangulation

1. Mostly suicidal. 1. Mostly homicidal.
6

c) Appellant no.1 admitted during his examination under Section 313
Cr.P.C. there was quarrel between him and Sonamoni, the victim had
slapped her immediately preceding her death;

d) In order to avoid his culpability appellant no.1 gave a false
explanation of suicidal hanging which is disproved by the medical
evidence on record i.e. manual strangulation.

The aforesaid circumstances leave no doubt in my mind that appellant

no.1 and the victim housewife had a quarrel on the fateful day over domestic

issue. Thereafter, he slapped and manually strangulated his wife to death. Faced

with the situation, learned senior counsel argued that the appellant no.1 had not

acted with pre-meditation and his conviction may be reduced to Section 304 Part

I of Indian Penal Code. Had the appellant no.1 struck a single blow in the course

of the quarrel resulting in the death of the housewife, I may have been impressed

by such submission. However, manual strangulation of the victim after having

slapped her (as admitted by appellant no.1 in his examination under Section 313

Cr.P.C.) clearly shows his intention to murder the deceased housewife. Hence, I

am unwilling to convert the conviction of the appellant no.1 to the lesser offence

of culpable homicidal not amounting to murder.

However, I am inclined to extend the benefit of doubt to appellant no.2.

Although appellant no.2 is the mother-in-law of the victim, motive attributed to

her in the FIR arising out of her alleged immoral conduct has not been proved at

all. Although it may be possible that she was present at the place of occurrence as

her alibi does not inspire confidence, her culpability in the factual matrix of the

case, appears to be tenuous as the housewife died due to strangulation after a

quarrel with her husband. Hence, I am of the opinion appellant no.2, mother-in-
7

law of the victim-housewife, may be extended the benefit of doubt and be

acquitted of the charge levelled against her.

Accordingly, conviction of appellant no.1 is recorded under Section 302 of

Indian Penal Code and his sentence is upheld.

Conviction and sentence of appellant no.2 are set aside.

The appeal is partly allowed.

The period of detention, if any, undergone by the appellant no.1 during the

period of investigation, enquiry and trial shall be set off against the substantive

sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.

The appellant no. 2, namely, Minati Das shall be released forthwith from

custody upon execution of bond to the satisfaction of the trial court which shall

continue for six months in terms of Section 437A of the Code of Criminal

Procedure, if not wanted in any other cases.

Copy of the judgment along with L.C.R. be sent down to the trial court at

once.

Let a copy of this judgment along with the lower court records be sent

down to the trial court immediately for necessary action and execution of the

sentence.

I agree.

(Bibek Chaudhuri, J.) (Joymalya Bagchi, J.)

AS/RKD PA

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