Bharat Chandra Bhowmick & Ors vs The State Of West Bengal
2022 Latest Caselaw 7919 Cal

Item No. 55




                  IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                  And
The Hon'ble Justice Ajay Kumar Gupta


                                   C.R.A. 274 of 2014

                         Bharat Chandra Bhowmick & Ors.
                                       -Vs-
                             The State of West Bengal


For the Appellants          :       Mr. Moinak Bakshi, Adv.

For the State               :       Ms. Zareen N. Khan, Adv.
                                    Ms. Manisha Sharma, Adv.
                                    Mr. Arup Sarkar, Adv.

Heard on                    :       29.11.2022 & 30.11.2022

Judgment on                 :       30.11.2022


Joymalya Bagchi, J.:-

1.

Appeal is directed against the judgment and order dated

25.03.2014 and 26.03.2013 passed by the learned Additional Sessions

Judge, 3rd Court, Tamluk, Purba Medinipur in Sessions Trial No.02(10) of

2009 arising out of Sessions Case No.183(July) of 2009 convicting the

appellants for commission of offence punishable under Section 498A of

the Indian Penal Code and appellant No.1 for the offence punishable

under Section 302 of the Indian Penal Code and sentencing them to suffer

simple imprisonment for three years and to pay fine of Rs.2,000/- each, in

default, to suffer simple imprisonment for two months more for the offence

punishable under Section 498A of the Indian Penal Code and sentencing

the appellant No.1 to suffer rigorous imprisonment for live and to pay a

find of Rs.5,000/-, in default, to suffer simple imprisonment for six

months more for the offence punishable under Section 302 of the Indian

Penal Code; both the sentences to run concurrently for the appellant no.1.

Prosecution case:-

2. Prosecution case as alleged against the appellants is to the effect

that Uma Rani Bhowmik was married to Bharat Chandra Bhowmik on

21st Falgoon 1412 BS according to Hindu rites and customs. As per

demand, cash of Rs. 30,000/-, one bicycle and some gold ornaments were

given as dowry. Three months after the marriage, appellants subjected

Uma to mental and physical torture. She complained of torture during her

visits to her parental home. Keeping the future of her daughter in mind,

Bibekananda Maity, her father (PW1) arranged for a settlement through

villagers but to no avail. On 30.09.2006 at 10.00 P.M., Bharat came to the

residence of Bibekananda Maity and informed he had taken Uma to see

Durga idol at Chingurdona and Chhaypukur. Uma went missing from

Chingurdona fair. Bharat stayed at the residence of his in-laws that night.

On the next day, Bharat went to his residence and again returned to the

house of Bibekananda. On interrogation he narrated different versions on

each occasion. This raised suspicion in the minds of his in-laws. On

01.10.2006 around 6.30 P.M. when Bibekananda and others went to the

local gram panchayat office, they were informed that the body of a female

was found floating in the Haldi river. Bibekananda went and identified the

body as that of his daughter. Owing to strong suspicion, he lodged first

information report at Nandakumar Police Station resulting in registration

of Nandakumar Police Station Case No. 101 of 2006 dated 03.10.2006

against the appellants under Sections 498A/302/304B/201/34 of the

Indian Penal Code.

3. Police held inquest over the body of the deceased. Post mortem was

also conducted. Post mortem doctor (PW13) noted lacerated and

punctured wounds in the abdomen of the victim and opined death was

due to the combined effect of abdominal injury and ante mortem

drowning, homicidal in nature.

4. In the course of investigation, witnesses stated that appellant no.1

had made extra-judicial confession that he was enraged as his wife

wanted to return to her parental home. He slapped her. As a result, she

fell down and became unconscious. He dragged her body and threw it into

the river.

Proceedings before the trial Court:-

5. In conclusion of investigation, charge-sheet was filed against the

appellants and charges were framed under Sections 498A/34 of the Indian

Penal Code against all the appellants and under Sections 302/201 of the

Indian Penal Code against appellant No.1.

6. To prove its case, prosecution examined 19 witnesses and

exhibited a number of documents.

7. Defence of the appellants was that appellant no.1 had taken his

wife to Chingurdona fair. She went missing from the fair. Subsequently,

her dead body was recovered from the river. They also denied the

allegations of torture upon the housewife for dowry. Appellants, however,

did not examine any witness to probabilise such defence.

8. In conclusion of trial, trial Judge by the impugned judgment and

order dated 25.03.2014 and 26.03.2013 convicted and sentenced the

appellants, as aforesaid.

Analysis of evidence:-

9. PW1, Bibekananda Maity is the father of the victim and the de-

facto complainant. He deposed his daughter was married to appellant

no.1. As per demand, Rs.9,000/- in cash, a gold ring and a finger ring

were given as dowry. Over an outstanding demand of Rs.21,000/- as

balance dowry and a sum of Rs.2,000/- for purchasing bicycle for his son-

in-law, his daughter was subjected to torture. He along with his brother

Monishankar Maity (PW4) went to the matrimonial home and settled the

matter. However, torture continued.

10. On 30.09.2006, Bharat came to his residence around 10.30 PM

and informed he had taken his daughter to Chingurdona fair where she

went missing. At that time, he was suffering from fever and was not in a

position to go out. He asked Bharat to stay for the night. On the next

morning, Bharat left for his home and thereafter returned in the

afternoon. His daughter could not be traced. At 4.00 PM a meeting was

held at Hari temple in the village. Upon repeated queries by para people,

Bharat stated he had taken Uma to the bank of Haldi River. Uma wanted

to return to her father's house. He became angry and slapped her. As a

result, she became unconscious and he threw her in the water. Hearing

the incident, local people went to search for the victim lady in the river. As

it was dark, they could not trace her. On the next morning, another

meeting was held at Motilal Chak Anchal office. When they were in the

meeting, PW1 received information that body of a woman was found

floating in the river at Berasura. The body was stuck to a badam tree. He

along with others went to the river side and identified the body as that of

his daughter. Police came to the spot and prepared inquest. He signed on

the inquest report. Thereafter, he along with Monishankar Maity (PW4),

Tapas Das (PW6) and Hiralal Jana (PW8) went to the police station. He

lodged written complaint which was scribed by Hiralal, marked Ext.2.

11. During cross-examination, he admitted there was no salish held

with regard to quarrel or assault on his daughter. He also admitted he had

not stated there was outstanding dowry payable to the in-laws in the FIR

or that there was torture over such issue on his daughter. He also

admitted he did not disclose the extra judicial confession made by Bharat

in the FIR. He had drafted the first information report in consultation with

Monishankar Maity (PW4), Tapas Das (PW6) and Hiralal Jana (PW8).

12. PW3 (Badal Chandra Maity) and PW4 (Monishankar Maity) are the

brothers of PW1. They have substantially corroborated PW1. They stated

Uma was subjected to torture over the issue of outstanding dowry. PW4

had accompanied PW1 to the residence of the appellants and paid the

remainder dowry. The witnesses also deposed with regard to the extra

judicial confession made by appellant No.1 during the meeting at Hari

temple at 4.00 PM on 01.10.2006. That evening they went to search for

the body of the deceased in the river but failed. On the next morning,

when they were in the meeting at Motilal Chak Anchal office, a dead body

was recovered. They went to the river bank and identified the dead body.

13. PW5, Smt. Jaba Maity is the mother of the deceased. She spoke

about torture upon her daughter over dues payable on account of dowry.

She also corroborated her husband (PW1) that the latter and Monishankar

(PW4) went to the house of the appellants and paid the outstanding dowry

amount. She also deposed with regard to the extra judicial confession

made by appellant no.1 at Hari temple in the evening on 01.10.2006.

14. PW6 (Tapas Das), PW7 (Dulal Chandra Das) and PW8 (Hiralal

Jana) are local villagers. All of them had stated appellant no.1 made extra

judicial confession at Hari temple in the evening of 01.10.2006 to the

effect that he had taken his wife to the river bank and when she insisted

to go to her father's house, he slapped her. As a result, she became

unconscious and he dropped her in the river. PW6 further deposed on the

next morning upon recovery of the dead body he intimated the police over

telephone. They were present when the police came and prepared inquest

report. PW8 was the scribe of the first information report.

15. PW2, Minu Maity (Karfa) is the sister of the deceased. She stated

she had seen the appellant and the deceased at Chingurdona fair.

16. From the cross-examination of the Investigating Officer, it appears

she stated to him that she had seen her sister alone in the fair.

17. PW14, Chandan Maity and PW16, Sarama Maity are the

neighbours of the appellants. PW14 stated appellant no.1 had taken

money and purchased land. He heard quarrels in the house of the

appellants. PW16 stated appellant no.1 and his wife had gone to the fair to

see Durga idol. Later on, appellant told her that his wife had gone missing

from the fair.

18. PW18, Kartick Ghorai deposed he had seen the appellant no.1

alone in the fair. Appellant no.1 told him that his wife had gone missing.

Thereafter, they searched for his wife but could not find her. Then

appellant no.1 went to his in-laws house.

19. PW13, Dr. Pradip Das is the post mortem doctor. On examination

he found rigor mortis all over the corpse. He noted peeling of superficial

layer of skin, mummification and decomposition over different parts of the

body. He found the following injuries:

"One 14 cm X 5 cm X cavity deep lacerated wound noted over left side of umbilicus obliquely placed - upper end of wound more near mid line of the body than lower end and from the wound extrusion of pale coils of small intestine which having punctured wounds at two places of size 3 to 4 cm X 1 cm X lumen deep."

20. He opined death was due to the combined effect of abdominal

injury and ante mortem drowning which is homicidal. He stated that the

injuries may be caused by sharp object. Lacerated wound may be caused

by stabbing. He opined death was approximately 90 hours plus minus ten

hours prior to the holding of post mortem examination.

21. During cross-examination he stated lacerated wound may be

caused by blunt object or sharp cutting weapons. Penetrating wound may

be caused by sharp cutting blunt weapon or sharp cutting pointed

weapon. He clarified the first injury mentioned in his report is a lacerated

wound and the second injury is a punctured wound.

22. PW21, Biswajit Haldar is the first Investigating officer. He deposed

on 02.10.2006 while on patrolling duty, he received telephonic information

from police station that body of a female was found on the bank of Haldi

river. On arriving at the spot, he found the dead body of a female. The

dead body was shown to him by Tapas Das (PW6). He held inquest over

the body, Ext.1. Magisterial inquest was also held over the dead body. He

sent the body of the deceased for post mortem examination. At the spot he

received written complaint from Bibekananda Maity. He forwarded it to

Nandakumar Police Station through NVF Sudangshu Maity. PW20, the

then Officer-in-charge, Nandakumar Police Station received the written

complaint and drew up the formal FIR.

23. During investigation, PW21 prepared rough sketch map of the

place of occurrence. On 04.10.2006 he arrested appellant no.1 from his

residence. He interrogated witnesses. He prepared rough sketch map of

the house of the appellants. He collected post mortem report. He seized a

small ladies purse containing various articles from the place where the

dead body was recovered. On 23.02.2007 he was transferred and

investigation was concluded by PW19 who submitted charge-sheet.

Conviction of appellant no.1 under section 302 IPC - Whether justified:-

24. From the aforesaid evidence, it appears that the prosecution case

of murder is based on circumstantial evidence. One of the most

incriminating circumstance relied upon by the prosecution to prove the

guilt against the appellant no.1 is his extra judicial confession made at

Hari temple in the evening on 01.10.2006. Prosecution relies on PWs 1, 3,

4, 5, 6, 7 and 8 to prove the aforesaid fact.

25. Let me examine the evidence of the aforesaid witnesses to test

whether their versions in court with regard to the extra judicial confession

is reliable or not.

26. PW1 is the de-facto complainant in the instant case. He deposed

his daughter had gone missing on the night of 30.09.2006. On the next

day i.e. 01.10.2006 in the evening a meeting was convened at Hari

Mondir. Upon repeated queries by villagers his son in law i.e. Bharat

confessed that he had slapped his wife whereupon she became

unconscious. Then he dragged her body and threw it into the water. This

fact, however, is significantly absent in the FIR lodged by PW 1. Failure to

disclose this important fact in the FIR casts severe doubt with regard to

credibility of the prosecution case relating to extra judicial confession

made by the appellant. PW 1 also claimed other witnesses namely

Monisankar Maity (PW 4), Tapas Das (PW 6) and Hiralal Jana (PW 8) were

present with him when the confession was made and thereafter at the

time of registration of FIR. He had consulted the said persons and then

lodged FIR which was scribed by PW 8. Though all the witnesses had

deposed with regard to extra judicial confession in Court, it is unclear how

in spite of their presence and consultation prior to the lodging of FIR such

fact does not find place in the said document. This is a grave lacuna which

not only discredits the maker of the FIR but casts doubt on the credibility

of all the witnesses who were present and consulted at the time when the

FIR came to be lodged. Additionally, a vital omission of this nature goes to

the root of the prosecution case and affects its veracity (see Ram Kumar

Pandey vs. State of Madhya Pradesh1)

27. Ms. Khan strongly argued that other witnesses namely PWs 3, 5

and 7 have also deposed regarding extra judicial confession.

28. We may have been persuaded to accept her submission but for the

fact that the truthfulness of the extra judicial confession comes into

serious challenge from other evidence too. All the witnesses in unison

stated that appellant no. 1 had slapped his wife and she became

unconscious. Thereafter, she was dumped into the river. But the medical

evidence on record i.e PW 13 (PM doctor) found two wounds - one

lacerated and another penetrating in the abdomen of the deceased. He

deposed such wounds may be caused by stabbing with a sharp cutting

blunt or pointed weapon. By no stretch of imagination could the wounds

found on the body of the deceased be caused by a slap. Hence, the

AIR 1975 SC 1026 (Para 9)

contents of the extra judicial confession as narrated by the witnesses do

not find corroboration with the medical evidence on record. This wholly

improbabilises the truthfulness of the so-called extra judicial confession

which is the foundation of the prosecution case.

29. It is the defence case that the victim went missing from the fair.

Defence version is corroborated by the evidence of PW 18 who found the

appellant no 1 at the fair searching for his wife. PW 2 tried to embellish

the prosecution case by claiming that he had seen the appellant no 1 and

his wife together in the fair. However Investigating Officer (PW 19) stated

PW 2 told him he had seen the victim, Uma alone in the fair. Investigating

Officer further clarified none of the witnesses have told him that they had

seen appellant no 1 and the victim together in the fair. After his wife went

missing, appellant no 1 went to the residence of his in laws to inform the

incident. The aforesaid pieces of evidence including the conduct of

appellant no 1 to immediately rush to the residence of the in laws and

inform the incident to them probabilises the defence case that the victim

had gone missing from the fair.

30. Hence I am of the opinion the prosecution has not been able to

prove all the circumstances beyond doubt and appellant no 1 is entitled to

the benefit of doubt on the charge of murder.

Charge under Section 498A IPC - Whether proved:-

31. With regard to cruelty upon the housewife over demand of dowry, I

note that the prosecution witnesses have made a new case in Court. In the

FIR there was no allegation that there were outstanding claims. There is

also no whisper that the housewife was tortured over demands of dowry.

But in court all the witnesses deposed an additional sum of Rs. 21,000/-

as dowry and sum of Rs. 2,000/- for purchase of bicycle for appellant no.

1 was outstanding and the housewife was tortured on such score. Even

PWs 14 and 16 (neighbours of appellant no. 1) while stating that the

appellant no 1 had bought land from dowry amount, do not speak of any

torture over demand of additional dowry.

32. In the light of the aforesaid contradictory stance taken by the

relations of the deceased regarding torture over demand of outstanding

dowry, I am of the opinion the prosecution case with regard to cruelty on

the housewife over demand of dowry has also not been proved. Appellants

are entitled to an order of acquittal on this score too.

Conclusion:-

33. In the light of the aforesaid discussion, conviction and sentence

imposed on the appellants are set aside. They are acquitted of the charges

levelled against them.

34. Appellant nos. 2 and 3 namely Astami Bala Bhowmick and Tulasi

Das shall be discharged from their bail bonds after expiry of six months in

terms of Section 437A of the Code of Criminal Procedure.

35. Appellant no. 1 viz. Bharat Chandra Bhowmick shall be released

from custody, if not wanted in any other case, upon execution of a bond to

the satisfaction of the trial court which shall remain in force for a period of

six months in terms of section 437A of the Code of Criminal Procedure.

36. The appeal is, accordingly, allowed.

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

forthwith sent down to the trial court at once.

38. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                            (Joymalya Bagchi, J.)