Nirmal Chakraborty and Others vs The State of West Bengal and Others

Ashim Kumar Roy, J.—1. In a sessions trial held before the learned Sessions Judge, 2nd Fast Truck Court, Tamluk, Midnapore, the appellants in CRA No. 158 of 2010, viz. Nirmal Chakraborty, Nitai Chakraborty and Malati Chakraborty, were convicted under sections 498A/302/34 IPC and were sentenced thereunder to suffer rigorous imprisonment for three (3) years and imprisonment for life respectively with fine and default clause. Whereas in the self-same trial, the appellant in CRA No. 171 of 2010, Panchanan Mondal, was convicted under sections 304/34 IPC and sentenced to suffer simple imprisonment for ten (10) years with fine and default clause but the brother of the appellant No. 1, Nirmal Chakraborty was found not guilty and acquitted.

However, according to the report submitted by the Superintendent, Midnapore Central Correctional Home, the sole appellant in CRA No. 171 of 2010, Panchanan Mondal, has already expired while was serving out his sentence and the said appeal has been accordingly disposed of by our order passed on February 9, 2016.

It is the case of the prosecution that the daughter of the de facto complainant, Ashok Kumar Mahapatra (PW/1), was given in marriage with the appellant, Nirmal Chakraborty, and their marriage was solemnized on Magh 1406 BS according to Hindu rites and customs. The appellants, Nitai Chakraborty and Malati Chakraborty, are his parent. Initially the conjugal life of the daughter of the de facto complainant (PW/1) was happy and peaceful and she gave birth to one male child in their said wedlock. However, after sometimes, their relation turned hostile as the son-in-law of the de facto complainant picked-up an illicit relation with a lady and when the victim house-wife protested, his daughter was subjected to torture, both physically and mentally. Several efforts although were made by the de facto complainant to settle their disputes, but all his efforts went on vain. On October 28, 2015 at about 9 AM in the morning, one Kanan Bala Bera (PW/2), went to the matrimonial home of the daughter of the de facto complainant and found that she was suffering from illness and one ''Gunin'', Panchanan Mondal (appellant in CRA No. 171 of 2010), in the guise of excoriating, was physically assaulting her and exposed her to smoke of burning chilly. Soon after, one Baneswar Bhowmick (PW/3), a neighbour of the appellants, arrived there and requested her father-in-law and brother-in-law to take her to a doctor or to any hospital for her treatment. However, they did not pay any heed to such request. Subsequently, the doctor, viz. Abani Sankar Hazra, (PW/5) was called for treatment, who found her unconscious, also advised to shift her to hospital. She was never moved to any hospital and she died around 2 pm.

After conclusion of the investigation, police submitted charge-sheet against all the three (3) appellants and another as also against said Panchanan Mondal (appellant in CRA 171 of 2010) and finally all five (5) charge-sheeted accused persons were placed on trial to answer the charges for the offences punishable under sections 498A/304/34 IPC.

During the trial, the prosecution examined as many as twelve (12) witnesses, but the defence examined none and from the trend of cross-examination and answer given by them during their examination under section 313 Cr.P.C., it appears that they sought to make out a case of false implication and claimed to be innocent.

Out of total twelve (12) witnesses, PW 2, Kanan Bala Bera, was declared hostile, PW 1, de facto complainant of the case, PW 7, his wife, PW 8, Prodhan of the village, were the post-occurrence witnesses; PW 10 is the doctor, who held the post-mortem, whereas PW 9 is a police personnel and PWs 11 and 12 are the Investigating Officers of the case.

Out of remaining four (4) witnesses, we find from their depositions that PW 4, Satyaranjan Chakraborty, that he has no knowledge about the alleged incident. In fact, the prosecution case, that the victim was killed while was excoriating, was the essential based on the evidence of PW/3, Baneswar Bhowmick, PW 5, Abani Sankar Hazra and PW 6, Maitrayee Chakraborty.

So far as Baneswar Bhowmick (PW/3) is concerned, his claim that being a close door neighbour of the appellants, he saw the victim was tortured both physically and mentally at her matrimonial home by the appellants, however, found to be contradicted by the PW/11 the Investigating Officer of the case. There was a clear omission to disclose such fact during investigation and therefore, same ought to be excluded from our consideration.

Out of twelve (12) witnesses examined by the prosecution during the trial, Kanan Bala Bera (PW/2), was declared hostile and, Satyaranjan Chakraborty (PW/4), disowned his knowledge about the prosecution case. Ashok Mahapatra (PW/1), the father of the victim/house-wife and the de facto complainant of the case, Mahamaya Mahapatra (PW/7), is the wife of the PW/1 and mother of the victim. Both of them, as it transpires from the evidence, were not present at the time when the victim was treated by Panchanan Mondal (deceased appellant) and spoke only about the ill-treatment meted out to their daughter by the appellants. PW/8, Prodhan of the village, is the post-occurrence witness and informed the police about the death of the daughter of the PW/1. PW/9 was a police personnel and PW/11 and PW/12 were the Investigating Officers of the case.

The learned counsel for the appellants assailed the order of conviction and sentence submitted due to superstition and erroneous belief, when the victim fell ill, a witch doctor Panchanan Mondal (deceased appellant) was called for her treatment and if due to such treatment she died the appellants cannot be held responsible for the same and be liable for any conviction. He then pointed out that in the post mortem report the word (ante mortem) was struck off.

The learned counsel for the State, however, did not concede to the submissions of the counsel of the appellants and contended since death was due to the wrong treatment provided to the victim at the instance of the appellants, they cannot disown their responsibility. Even being advised by the PW/5 Abani Shankar Halder, a quack doctor she was not taken to the hospital and left to die.

Now, going through the evidence of Baneswar Bhowmick (PW/3), a neighbour of the victim we find when he reached the house of the appellant, he found Panchanan Mondal (deceased appellant) was treating her with smoke of burning chili. According to the said witness, after sometime PW/5 came and asked them to take the victim to the hospital and at about 2 PM, when he returned to his village after completion of his day''s work, he found that the victim was lying dead and all the appellants were present there. It was the evidence of Abani Sankar Hazara (PW/5) at around 8.15 AM in the morning, he received a call and was requested to visit the victim. In response to such call, he had been to the house of the appellants and having found that the victim was lying unconscious, asked the appellants to take her to the hospital. A neighbour Maitrayee Chakraborty was examined as PW/6. According to her she found Panchanan Mondal (deceased appellant) was treating the victim with chili smoke. However, the defence contradicted her as regards to the same by cross-examining the Investigating Officer of the case.

Now, on careful scrutiny of the evidence of the aforesaid two witnesses, PW/3 and PW/6 we did not find when the victim was being treated by Panchanan Mondal (deceased appellant) none of the appellant was present there. However, it is their unchallenged evidence that she was being treated at the house of the appellants.

However, according to post-mortem report, we find lacerated injury on the tongue and few other abrasions were found on the persons of the victim and according to the opinion of Autopsy Surgeon (PW/10), the death was due to effect smothering ante-mortem and homicidal in nature. It was his further opinion there was smothering that is intense of congestion over face, marks of several injuries over inner aspect of the lips, which is caused by abrasion over mouth and forth at nostril also indicates pressure over nostril. Haematoma over the right eye and left eye congestion denotes the effects of asphyxia and pressure, which obstructed the flow of blood from face to downward heart. Bullishness of nasals is also a feature of asphyxia. The per-vocal blood mixed forth is also indicates the fact of pressure over external air passage gradually increased.

From the above findings of the Autopsy Surgeon and in absence of anything adverse to that, we have no doubt that the victim died asphyxial death and that was due to her exposure to chilly smoke and according to the evidence of the witnesses, it was Panchanan Mondal (deceased appellant), who was responsible for that. However, at the same time, the role of these appellants in causing her death cannot be overlooked. Panchanan Mondal (deceased appellant) was called there and engaged by them for the treatment of the victim and the treatment meted out to her at the house of the appellant. The appellant instead of providing her proper scientific medical treatment in spite of being advised by the PW/5 Abani Shankar Hazara and without removing her to hospital, she was subjected to inhuman torture by an exorcist in the name of treatment. Now, the very fact that her alleged treatment by the exorcist took place in the house of the appellant and his service being requisitioned by the appellant, their movement in causing her death cannot be denied. However, in the above backdrop we have no doubt they were not guilty of the offence punishable under section 302 IPC but under section 304 part-I IPC.

Now, coming to the question of the conviction of the appellants under section 498A IPC, we find the allegation of committing cruelty to her by the appellants was first deposed by the PW/1, the father of the deceased, during his examination in court, but such allegation was not there in the first information report, lodged by him. There was also no allegation in the FIR about the appellant No. 1''s picking up an illicit affair with a lady. The identity of the lady was not exposed to the court by the prosecution. The defence has duly contradicted PW/1 in accordance with law. The mother of the victim Mahamaya Mahapatra (PW/7) was also contradicted by the Investigating Officer of the case PW/11. Now, we find from the evidence of Maitrayee Chakraborty (PW/6) a neighbour of the appellant, the conjugal life of the victim at her matrimonial home was happy and she was put to death by inflicting torture. Thus, it boils down that there was no acceptable evidence that the victim was subjected to cruelty at her matrimonial home and according to the evidence of one of the neigbours Maitrayee Chakraborty (PW/6), her conjugal life was happy. Therefore, we are of the opinion the conviction of the appellant under section 498A IPC cannot be sustained.

In the result, the appeal is partly allowed and while we convert their conviction under section 302 IPC to 304 part-I IPC their conviction under section 498A IPC is set aside. The sentence is also accordingly modified and it is directed that the appellants shall serve rigorous imprisonment for eight years, shall pay a fine of Rs. 2,000/- (Rupees Two Thousand) each and in default to suffer further rigorous imprisonment for one month.

The appeal accordingly stands disposed of.

The office is directed to send down the lower case records at once.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties, as early as possible.

I agree.