Radhapada Ghosh vs State of West Bengal

Joymalya Bagchi, J.—Appeal is directed against the judgment and order dated 20/21.07.2006 passed by the learned Additional Sessions Judge, Durgapur, convicting appellants and one Bankim Ghosh @ Mondal @ Banka for commission of offence punishable under Sections 304B and 498A of the Indian Penal Code and sentencing Bankim Ghosh rigorous imprisonment for ten years for the offence punishable u/s 304B of the Indian Penal Code and simple imprisonment for three years and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for three months more for committing offence u/s 498A of the Indian Penal Code and sentencing the appellant nos. 1 and 3 simple imprisonment for seven years for the offence punishable u/s 304B of the Indian Penal Code and one year simple imprisonment for the offence punishable u/s 498A of the Indian Penal Code and sentencing the appellant no. 2 rigorous imprisonment for seven years for the offence punishable u/s 304B of the Indian Penal Code and simple imprisonment for two years and to pay a fine of Rs. 5,000/- in default simple imprisonment for three months more for the offence punishable u/s 498A of the Indian Penal Code, both the sentences to run concurrently.

The prosecution case against the appellants is as follows:

One Sanatan Ghosh, P.W. 1, lodged a complaint with the Pandaveswar Police Station alleging that on 26th Magh, 1402 B.S. victim Jaba, his daughter, was married to one Bankim Ghosh as per Hindu rites and customs. After the marriage, Jaba was subjected to mental and physical torture for not bringing money from her father''s house as dowry. On 19.09.1997 Bankim Ghosh brought his daughter from her parental home and on the next date, i.e., on 20.09.1997, P.W. 1 received the information of death of Jaba. Having arrived at the place of occurrence, he found that the dead body of Jaba was lying on the verandah. He was suspicious that Jaba was murdered or had been forced to commit suicide due to torture meted out by the appellant. Pursuant to such information, Pandaveswar Police Station Case No. 72/1997 dated 20.09.1997 under Sections 304B/498A of the Indian Penal Code was registered. In conclusion of investigation, charge sheet under Sections 498A/304B of the Indian Penal Code was submitted. The case was committed to the Court of Sessions, Burdwan and transferred to the learned Additional Sessions Judge, Durgapur, Burdwan for trial and disposal. Charge was framed against the appellants and Bankim Ghosh. They pleaded ''not guilty'' and claimed for trial. The defence of the appellant was one of innocence and false implication. The prosecution examined as many as 12 witnesses. In conclusion of trial, the learned judge by the judgment and order dated 20/21.06.2006 convicted the appellants and Bankim Ghosh for the offences punishable under Sections 304B and 498A of the Indian Penal Code and sentenced them, as aforesaid. Challenging the aforesaid judgment and order instant appeal has been preferred by the appellants herein. No appeal has been preferred by Bankim Ghosh, who appears to be served out the sentence.

P.W. 1, the father of the victim, stated in his evidence that marriage of the victim took place on 26th Magh, 1402 B.S. Within two years of her marriage the victim died at her matrimonial home. The appellants demanded money from him and used to create pressure for bringing further money. As he was poor, he was unable to fulfil the demands of the appellants. As a result, the appellants subjected the victim to mental and physical torture. The victim came to his residence at the time of puja and stayed there for two days. Thereafter, Bankim took away the victim on 19.09.1997 from his home. On the next date, i.e., on 20.09.1997, P.W. 1 was informed that the victim had died. He went to the matrimonial home of the victim and found dead body of the victim way lying on the varandah. He, however, denied having lodged any complaint with the police and, as a result, was declared hostile. In cross-examination he admitted that he had put his L.T.I. on the written complaint. He further deposed in cross-examination that his daughter was good looking. He denied that during lifetime of the victim, he filed any complaint with the police with regard to torture meted out to her. He however denied the suggestion that his daughter did not disclose incident of torture over dowry to him during her lifetime.

P.W. 2, the brother of the victim, corroborated the evidence of torture upon the victim over demands of dowry. He proved his signature on the inquest report, which was exhibited as Exbt. 1/1. He stated to the police that his sister was subjected to torture for bringing further dowry. In cross-examination he stated that his sister died at as the time when she had a six months old child.

P.W. 3, the mother of the victim, has corroborated the evidence of torture upon the victim by the appellants on demands of dowry as narrated by P.Ws. 1 and 2.

P.W. 11, the brother-in-law of P.W. 2, stated that he came to know from P.W. 1 that the victim was subjected to torture on demands of dowry and was deprived of food. He stated that on hearing the news of death of the victim, he went to the matrimonial house of the victim and found the victim hanging from a ceiling fan. He stated that he found marks of assault on the body of the victim. He, however, stated that complaint was not written by him. He proved his signature on the F.I.R., which was exhibited as Exbt. 5/2.

Post mortem doctor was not examined in the instant case. However, post mortem report has been exhibited on admission u/s 294 of the Code of Criminal Procedure.

Mr. Sen, learned amicus curiae submitted that the First Information Report has not been proved in the instant case. He submitted that Post Mortem Doctor had not been examined and, accordingly, cause of death had not been proved. He stated that evidence of P.Ws. 1, 2, 3 and 11, who were relations of the victim has not been corroborated by the independent witness. Accordingly, he submitted that it was unsafe to convict the appellants on the basis of the evidence of P.Ws. 1, 2, 3 and 11 who were in-laws of the victim.

Mr. Ghose, learned counsel for the State submitted that consistent versions of the relations, namely, P.Ws. 1, 2, 3 and 11 were unshaken in cross-examination and evidence of torture on oath is consistent with their previous statements recorded before the police during investigation. Although, the Post Mortem Doctor was not examined, Inquest Report and Post Mortem Report were exhibited which show marks of injury on the victim. There is no escape from the conclusion that the victim had suffered unnatural death within seven years of marriage and subjected to torture soon before her death. Accordingly, he submitted that judgment and order of conviction and sentence does not call for interference.

The evidence of P.Ws. 1, 2, 3 and 11 and are consistent on the point of torture upon the victim by the appellants on demands of dowry. They remained unshaken in the course of cross-examination. No contradiction of their evidence in Court with their previous statements recorded by the investigating Officer could be elicited in the course of cross-examination. It is a fact that P.W. 1 and 11 have declined to stand by the First Information Report. P.W. 1 has denied that he had narrated the incident and lodged complaint before the police. P.W. 11 has not admitted that it was written by him. The First Information Report is no doubt a vital document in unraveling the prosecution case. However, merely because the First Information Report is not proved, one cannot throw out the prosecution story in the instant case particularly in the face of the consistent evidence of the prosecution witnesses in support thereof. P.Ws. 1, 2 and 3 are vital and reliable witnesses of torture of the victim by the appellants on demands of dowry.

Therefore, merely because the written complaint treated as First Information Report has not been proved in the instant case, one cannot throw out the prosecution case of torture of the victim on demands of dowry. It is also evident that the victim narrated the continuous torture on her by the appellants to the witnesses viz., her parents and her brother, P.Ws. 1, 2 and 3 whenever she came to her parental home. Shortly before her death she came to the house of P.W. 1 and narrated her woes and torture to P.Ws. 1, 2 and 3. It is, therefore, clear that the prosecution has been able to adduce evidence that the victim was subjected to torture soon before her death. Added to it is the conduct of Bankim, the husband of the victim who on the day preceding her demise, forcibly took her away from her parental home to her matrimonial home where she met her unnatural end.

From the aforesaid discussion, it appears that the appellants had conjointly participated in the consistent torture of the victim on further demands of dowry resulting in her unnatural death within two years of the marriage. The evidence of torture is consistent, reliable and establishes a close chain to the ultimate demise of the victim. The words ''soon before her death'', in Section 304B of the Indian Penal Code means that there must be a proximate and live link between the torture of the victim on demands of dowry and her unnatural death (See: Hira Lal and Others Vs. State (Govt. of NCT) Delhi, In the instant case prosecution has been able to establish a continuous chain of torture during the matrimonial life of the victim on demands of dowry resulting in the ultimate unnatural death of the victim. The defence has hopelessly failed to rebut the presumption u/s 113B of the Evidence Act.

With regard to the cause of death, I find that the post mortem Doctor has not been examined. Hence, the cause of death as transpiring from the post mortem report has not been proved. However, it is trite law that when a post mortem report is exhibited, the injuries noted therein are admissible and can be looked into. From the inquest report, I find the following injuries of the victim:

"Apparent injuries or marks on the body:

Severe drag injury about more than one inch deep round the throat of Deceased Jaba Mondal whose front portion of tongue coming out of her mouth with several small injuries on face perhaps to have been done with fore-point of knife......"

From the post mortem report, I also find the following injuries:

"Injuries: (I) one abrasion of 1/2" x 1/2" at front and mid chin. (ii) There is a ligature mark at upper part of neck above thyroid cartilage, obliquely placed, i.e. from Rt. To left it is below upword and is non continuous at left lat side of the neck. The ligature mark is 12" in length, width is 0.5" to 0.7". The gap of 1" in front as below the left ear lobule. The course of ligature mark as it is 1.4" below right angle of mandible, then caves to forwards as to midline to a point 4" above mid suprasternal notch, then to a point 0.8" below it angle of mandible, from here it ascends upward and backwards & assumes inverted v shape gap of 1", then it is evidence 1.5" below tip of it. Mastoid process, then at post part it is 2" below ext. occipiprotuberance, 2" below Tip of Rt. mastoid process. The ligature mark is dry hard, parchmentised it show shows vital reactions around it. The abrsn at chin is reddish non scrapped. There is no other injury seen except those described here even after careful examination."

On perusal of the aforesaid injuries on the victim and the evidence of P.W. 11 that she was found hanging from the ceiling fan leaves no doubt that she had suffered an unnatural death within seven years of her marriage at her matrimonial home.

For the aforesaid reasons, I am constrained to uphold the judgment and order of conviction and sentences imposed upon the appellants.

The appeal is accordingly dismissed. The appellants are directed to surrender to their bail bonds within one month and serve out of the sentence in accordance with law.

Copy of the judgment along with Lower Court Records be sent down to the Trial Court at once.

I record my appreciation for the able assistance extended by Mr. Sen, as amicus curiae for disposal of the appeal.