J.N. Patel, C.J.@mdashThis appeal is directed against the judgment and order dated 28.1.2000 passed by learned Additional Sessions Judge, 5th Court, Midnapore in Sessions Trial No. 1/April/1997 wherein the appellant/accused Sankar Prodhan was found guilty of having committed offence under sections 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for another six months. He was also convicted for having committed offence u/s 498A read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months along with other appellants/accused viz. Madan Chandra Prodhan i.e. his elder brother who was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months and Sita Rani Prodhan, his mother who was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 250/- in default to suffer rigorous imprisonment for three months for having committed offences punishable u/s 498A read with section 34 of the Indian Penal Code. In a nutshell, it is the prosecution case that Smt. Tukarani alias Sumati Prodhan was married to Sankar Prodhan of Vetoria village within Khandanbari Gram Panchayat in the month of Ashar in 1398 (B.S.). Initially, Tukarani was treated well at the matrimonial home but thereafter, she was subjected to physical and mental torture by the appellants/accused in order to coerce her to bring money, On the fateful day i.e. 15.2.1992 the father of Tukarani namely Bijan Behari Das, P.W. 1 reached her at in-laws'' place. On the very day at about 7.00 p.m. he came to know that his daughter Tukarani has died. He reached at his son-in-law''s place and found his daughter lying dead with injuries on her body. The incident was reported to the police on the next day at about 6.00 a.m. and one U.D. case being no. 5/1992 dated 16.2.1992 was registered on the basis of a written complaint received from one Sajal Das that one Sumati Prodhan alias Tukarani, wife of Sankar Prodhan died. On the next day of her death i.e. on 16.2.1992 Bikash Kanti De, (P.W. 13) Sub-Inspector of Police, Nandigram Police Station, reached the place of occurrence and prepared an inquest report (Ext. 1/A). He seized wearing apparels of Tukarani from the spot and sent the deadbody to Tamluk Hospital for postmortem examination through Satish Nandi, Police Constable, P.W. 12. On the basis of the inquest report police registered a case bearing no. 18/1992 dated 16.2.1992 under sections 498A/302 of the Indian Penal Code, and, a First Information Report (Ext. 2) came to be lodged by Bijan Behari Das, P.W. 1.
2. In course of investigation police recorded statement of witnesses u/s 161 of the Code of Criminal Procedure and arrested the appellants/accused. On receipt of the post-mortem examination report and FSL report, the investigation was completed and a chargesheet came to be filed against the appellants/accused for having committed offences punishable u/s 498A/302 read with section 34 of the Indian Penal Code and u/s 304B/306/34 of the Indian Penal Code and also sections 3/4 of the Dowry Prohibition Act.
3. The appellants/accused pleaded not guilty and claimed to be tried. In their defence, the appellants/accused took a stand that Tukarani has been suffering from hysteria and that they are all innocent.
4. On the conclusion of trial, the learned Trial Court found appellant/accused Shankar guilty of having committed offence punishable u/s 498A/302 read with section 34 of the Indian Penal Code and other two appellants/accused for having committed offence u/s 498A/34 of the Indian Penal Code and acquitted them from the charge of having committed offences under sections 304B, 306 read with 34 of the Indian Penal Code and u/s 3/4 of the Dowry Prohibition Act.
5. It is the contention of the appellants/accused that they have been falsely implicated in the instant case by the relatives of the deceased who are interested persons and that the Trial Court having acquitted them of the charge under sections 3/4 of the Dowry Prohibition Act, therefore, their conviction u/s 498A read with section 34 of the Indian Penal Code cannot be sustained.
6. It is contended that in so far as the conviction and sentence imposed by the Trial Court against the appellant No. 1 for having committed murder of deceased Tukarani is concerned it is wholly based on circumstantial evidence and considering the perfunctory nature of investigation the prosecution having failed to prove the case against the appellants/accused beyond reasonable doubt they are entitled for acquittal.
7. It is submitted that the evidence of witnesses who are close relatives of the victim suffers from various discrepancies and exaggeration. Therefore, it will not be safe to rely on their evidence in order to convict the appellants/accused for murder.
8. It is submitted that the evidence of the close relatives of the victim that the father of the complainant, P.W. 1, two elder brothers i.e. P.W.s 6 and 7 and their wives (P.W. 9 and P.W. 10) is totally inconsistent with the earlier statement made before the police and, there is an attempt to falsely implicate the accused, therefore, it deserves to be discarded.
9. It is submitted that the prosecution witnesses particularly the complainant (father of the victim) has substantially improved his case in evidence in so far as allegation of payment of cash and articles on the occasion of daughter''s marriage is concerned or that his daughter is being tortured for further demand of dowry. It is submitted that in the First Information Report there was no mention of the fact that he noticed the marks of injury on the neck of the body and he did not complain about the torture inflicted upon his daughter to any person including the neighbours of the appellants/accused. Therefore, the appellants/accused deserves to be acquitted.
10. It is submitted that the neighbours of the appellants/accused did not support the prosecution case and were declared hostile and, therefore, there is no independent evidence led by the prosecution in support of their case.
11. On the other hand, learned Counsel appearing for the State submitted that the prosecution has proved the case beyond reasonable doubt in so far as the charge of murder against the appellant/accused Sankar is concerned and that of physical and mental torture inflicted upon Tukarani by all the appellants/accused.
12. It is submitted that the victim was done to death within seven months of her marriage after she was tortured by the appellants/accused as they were not happy with dowry received in the marriage.
13. It is submitted that the neighbours have turned hostile itself goes to show that they do not want to support the prosecution being neighbours of the appellants/accused and, therefore, the prosecution was left with no choice but to place reliance on the evidence of the close relatives of the deceased i.e. father, brothers and sister-in-law who are the natural witnesses. If their evidence is considered in totality there is no reason to disbelieve them merely because there are some minor discrepancies in their evidence.
14. It is submitted that the prosecution has established that the victim died homicidal death by examining the medical officer for which the appellants/accused have offered no explanation as to how the victim died in their custody in the matrimonial home and suffered injuries. Therefore, the appeal deserved to be dismissed.
15. There is no dispute over the fact that Tukarani was married to the appellant/accused, Sankar Prodhan and it was an arranged marriage and that she was found dead at the residence of her husband and in-laws. Intimation being given to the Nandigram police station in respect of an unnatural death of Smt. Tukarani, wife of Sankar Prodhan, S.I. Bikash Kanti De, P.W. 13 visited the place of occurrence and prepared the inquest report (Ext. 1/A) between 06.30-10.30 a.m. on 16.2.1992 at village Vitoria in the presence of the villagers who were the witnesses however P.W. 1 i.e. the complainant and one Gour Haridas are the only signatories. In the inquest report it is recorded that there is a little froth in the nostrils, scratch mark with nail is found on the neck and a blackish red mark is found on the neck which might have been caused by pressing for a long time and catechu coloured blouse is on the person of the deceased, the two buttons of which are open and catechu coloured benarasi saree with ''jari'' work and catechu pettycoat, legs are wrapped. After the vagina and urinary tract were examined no fluid or defecation was found. To ascertain the actual cause of the death, the dead body was sent for postmortem along with constable Satish Nandi.
16. The post-mortem was conducted by Dr. Amulya Kumar Mondal, P.W. 15, who stated as follows:
on examination he found the deadbody in swollen condition. I also found some scratch mark around the neck of the deceased with mark of deep pressure over the right side of the neck. On dissection wall of the trachea was seen blood-stained and blood present in the lumen of the trachea. Decomposition of the body was found started. In the stomach 4 ounce of reddish colour fluid present. Uterus of the deceased was bulky indicating 8 weeks pregnancy of the deceased. Considering the circumstances he preserved the viscera for sending the same to the chemical examiner for examination and report. No poison was detected in the viscera. This is the said viscera report dated 27.7.93 (Ext. 4) he himself prepared the post mortem report in respect of the deceased referred to above.
Upon consideration of the viscera report and also considering all other surrounding circumstances I opined that the death of deceased Sumati Prodhan was due to asphyxia as a result of mechanical obstruction to the air passage (throttling) which is ante-mortem and homicidal in nature. I submitted my report containing my opinion on 27.11.93. This is my said report marked (Ext. 5).
Such marks of injury in the neck of the deceased might have been caused due to throttling. The scratch mark on the neck of the deceased might have been caused due to resistance from the end of the deceased himself or herself. Tracha wall on the neck of the deceased in blood stained condition was due to mechanical pressure by human being. During my service career as M.O. I held quite a number of post-mortem examinations. This is the post-mortem report in respect of the deceased Sumati Prodhan prepared and signed by him marked (Ext. 6)
17. In the cross-examination of the medical officer nothing was brought on record to show that the cause of death was something other than homicidal.
18. Therefore, we have no hesitation to accept that Tukarani''s death was due to asphyxia as a result of mechanical obstruction to the air passage (throttling) which is ante-mortem and homicidal in nature.
19. In order to prove the case against the appellants/accused the prosecution has examined two sets of witnesses. One set consists of close relatives of the deceased Tukarani i.e. P.W. 1, Bijan Behari Das, father of the deceased, Swapan Kumar Das P.W. 6 and Badal Das, P.W. 7 brothers of the deceased and Khokan Das another brother of the deceased was offered for cross-examination. It has also examined Subarna Rani (P.W. 9), wife of P.W. 6 and Kalo Rani Das, P.W. 10, wife of Sri Khokhan Kumar Das and the Neighbour Monoranjan Maity, P.W. 11 who deposed that the victim was married to Sankar Prodhan which is not much disputed.
20. From their evidence it is clear that Sumati alias Tukarani who is the eldest daughter of P.W. 1 was married to Sankar according to Hindu rites and customs. Marriage ceremony was performed by Kanai Chakraborty, P.W. 5. It was a settled marriage and after the marriage Tukarani alias Sumati was taken to her matrimonial home at village Vitoria under Nandigram police station which is at a distance of 11/2 miles. Their evidence is consistent on the fact that the said Tukarani was not treated well at her matrimonial home and that she suffered both physical and mental torture. Except for P.W. 1, Bijan Behari Das who has introduced that the daughter was treated with cruelty for the reasons of dissatisfaction on the point of further demand of dowry the other relatives do not say so. In evidence of other relatives except that appellant Shankar used to assault her in drunken condition, there is no specific reason given for treating Tukarani with cruelty by the appellants/accused such as for want of dowry and on this count they do not corroborate the father i.e. P.W. 1, however, Sumati alias Tukarani did tell them the story of her ill-treatment and torture at the hands of her in-laws. It is because of this fact that the Trial Court found that the prosecution has failed to prove the charge u/s 304B read with section 34 and sections 3/4 of the Dowry Prohibition Act and acquitted the appellants/accused against which no appeal is preferred. Therefore, on conjoint reading of their evidence before the Court it is quite clear that the appellants/accused treated the victim i.e. Tukarani with cruelty that she was subjected to physical and mental torture by all the appellants/accused.
21. The contention of the learned Counsel appearing for the appellants/accused that their evidence should not be accepted as they are interested witnesses is not correct. The evidence of these witnesses who are close relatives of the deceased and in the circumstances of the case are natural witnesses in whom the victim would confide how she was treated at her in-laws'' place and taking into consideration that all these witnesses are consistent in their evidence about the ill-treatment meted out to Tukarani by her in-laws and having not falsely implicated the appellants/accused of the charge of having coerced Tukarani to bring dowry does inspire confidence and can be safely relied as we find their evidence to be intrinsically truthful and reliable. In so far as the other set of witnesses are concerned i.e. co-villagers and neighbours of the appellants/accused particularly, Madan P.W. 2 and Tapas Prodhan, P.W. 3 and Subal Chandra Giridas. They all turned hostile. Therefore, we find that the charge against the appellants/accused for having committed offence u/s 498A/34 of the Indian Penal Code stands sufficiently established.
22. Prosecution in order to prove the charge against the appellant-accused Shankar of having committed murder of his wife Sumati alias Tukarani mainly relies on circumstantial evidence. On the very day when Tukarani was found dead in the bedroom of the appellant-accused Shankar her father, Brjan Behari Das, P.W. 1 had left her at the matrimonial home. In his evidence he has deposed that "it is mentionable that in the morning of the said Saturday my daughter was in my place of residence and myself took her to the house of the accused persons in the afternoon of the said Saturday. I, however, left the house of the accused persons after sending my daughter to the house of the accused persons. At about 7 p.m. of the said Saturday I received information about my said daughter''s death."
23. This fact is not challenged by the defence. On the other hand, all the appellants/accused have shown their ignorance as to how Tukarani died.
24. In their statement under 313 of the Code of Criminal Procedure they have taken a plea that she was suffering from hysteria except for this there is no evidence on record that the victim was suffering from such a mental disorder. In the cross-examination, no such suggestion was put to the witnesses i.e. father and other relatives of the victim. Therefore, we have no hesitation to hold that the victim died, while in the house of the appellant-accused in unnatural circumstances and the prosecution having established that her death was homicidal and on failure of the appellant-accused to explain under what circumstances she suffered a homicidal death of which they have expressed ignorance points to the guilt of the appellants-accused with reasonable definiteness. Therefore, we find that the Trial Court was justified in coming to the conclusion that the appellant-accused Shankar is guilty of having committed murder of his wife as in the given facts and circumstances possibility of any other person having committed the murder is completely ruled out and, therefore, we find no merits in the appeal and the same is dismissed with no costs.
A.K. Roy, J.
I agree.
