Girish Chandra Gupta, J.@mdashThis appeal is directed against a judgment dated 21st December, 1990 by which the learned Judge, Special Court E.C. Act- cum- Additional District & Sessions Judge, District Midnapore, convicted the accused Sukdeb Khan and his parents u/s 306 and section 498A of the IPC both read with section 34 thereof and sentenced them to suffer rigorous imprisonment for 8 years each as also to pay a fine of Rs.2,000/- each for the offence punishable under sections 306/34 of the IPC in default to suffer R. I. for a period of two years as also to suffer rigorous imprisonment for a period of 2 years for the offence punishable u/s 498A of the IPC as also to pay a fine of Rs.1,000/- each, in default to further rigorous imprisonment for a period of 6 months in Sessions Trial Case No.IX of June, 1990. Both the sentences were directed to run concurrently.
2. The acts and circumstances of this case briefly stated are as follows:
Gangarani Khan aged about 19 years, daughter of Dasarath Mallick, was given in marriage to Sukdeb Khan according to Hindu Rites. Within 15 months from the date of marriage, she committed suicide. She at that time was pregnant for about 28 weeks. The police started an unnatural death case. The complaints made to the police by the parents of the deceased were simply brushed aside. The father of the deceased, P.W.3, was advised to send the complaint to the authorities under registered cover which he did. In spite thereof, no step was taken by the police for about 3 months. A written complaint was thereafter taken from the father of the deceased, Dasharath Mallick, which has been tendered and marked Exhibit-1. The acknowledgement due cards received by the de facto complainant from the concerned District Magistrate, concerned S. P. and the S.D.O. Ghatal, have also been tendered and marked Exhibit-2 series. The letters sent under registered cover appear to have been received by the District Magistrate on 29th September, 1988, by the Officer-in-Charge on 29th September, 1988, by the Superintendent of Police on 29th September, 1988 and by the S.D.O. Ghatal, on 30th September, 1988, whereas the death took place on 26th September, 1988. The written complaint, which ultimately was accepted by the police and on the basis whereof the criminal case was started, was received by the police on 27th December, 1988.
3. Mr. Bapuli, learned advocate, appearing in support of the appeal, advanced the following submission:
There is no satisfactory evidence on record to show that the deceased was subjected to cruelty or that any demand for dowry was made.
4. He, in support of his submission, drew our attention to the written complaint marked Exhibit-1 wherein it has been alleged that a sum of Rs.4,000/- by way of additional dowry was demanded by the father of the said Sukdeb Khan within a few days after the marriage whereas the P.W.3, Dasarath Mallick, in his evidence in Court deposed that a sum of Rs.6,000/- was claimed. He submitted that the inconsistency on the face of it goes to show that P.W.3, Dasarah Mallick. was not sure about his case. He also drew our attention to the evidence of P.W.7, Sasthi Mallick, P.W.8, Saktipada Kamal, P.W. 9, Madan Mohan Dolui, and P.W. 11, Ajit Kumar Dolui, who deposed that the deceased was constantly tortured by her in-laws. He submitted that the evidence of these witnesses is not believable because the story as regards torture and demand for dowry was disclosed by these witnesses in the Court for the first time. No such statement was made by them during their examination u/s 161 of the Cr PC. He in this regard drew our attention to the evidence of P.W.19, Joyanta Chakraborty, and P.W. 20, K. K. Mandal. He, accordingly, submitted that the prosecution has not been able to prove the charges beyond any reasonable doubt.
5. Mr. Mullick, learned advocate, appearing for the State, disputed the submission of Mr. Bapuli, the learned counsel, appearing for the appellants. He submitted that the prosecution has been able to prove the case beyond any reasonable doubt. He took us through the evidence adduced by the witnesses.
6. From the written complaint, marked Exhibit-1, it appears that after the marriage, demand for additional dowry was made. Because such payment was not made by the parents of the deceased, she was tortured both physically and mentally. In order to put an end to that torture, the father of the deceased went to her matrimonial house. He assembled the villagers and prayed for stopping the inhuman act. The allegation to be found in the written complaint reads as follows:
"I went to my son in law''s house at Sitarampore village with Shri Saktipada Kamal son of late Jhatu Kamal, my brother Shri Sasti Mallick son of Late Rampada Mallick, Shri Madan Dolai son of Late Bhutnath Dolai on my village and Shri Ajit Dolai son of Late Gour Dolai of village Damodarpur to consult over this matter. To know the cause of this torturing the villagers were called on there and we all humbly requested to all of them so that my daughter could live a peaceful (life) and so that further torturing may not occur."
7. The de facto complainant claims to have visited the matrimonial house of his daughter accompanied by Shaktipada Kamal, P.W.8, Sasthi Mullick, P.W.7, Madan Mohan Dolui , P.W.9, and Ajit Kumar Dolui, P.W.11, as would appear from the written complaint, material portion of which has been extracted above.
8. P.W.7, Sasthi Mullick , deposed in this regard as follows:
"I again came to know from my relation Nimai that Ganga was further subjected to assault and torture by the members of the family of her husband. Myself, my brother and some other persons again went to the house of Ganga''s father in law in the month of Srabhan next. There we assembled the villagers of that Sitarampur village in the house of the father in law of Ganga and there we told the father in law and the son in law that whatever we had we had given it in the marriage and we had no money further and as such it would not be possible to pay further money. They disclosed that they had difficulties in the matter unless money had got to be paid."
9. In so far as this part of the evidence of the P.W.7 is concerned, no contradiction from the Investigating Officer was obtained nor is there any significant cross-examination.
10. P.W.8 Shaktipada Kamal, did not, however, depose anything with regard to his visit to the matrimonial house of the deceased for the purpose of putting an end to physical and mental torture.
11. P.W.9, Madan Mohan Dolui, deposed in this regard as follows:
"Once only I had been to the father in law''s house of Ganga after the marriage while Dasharath accompanied me along with Sasthi, Sakti and Ajit Dolai. The purpose of our visit was to persuade the accused persons not to assault while she was living in her husband''s place. That visit was about 2 years ago from this date before the death of Ganga. About 2 months after that Ganga died."
12. From his cross-examination it appears that he was not examined u/s 161 of the Cr PC. At this stage, we must notice a very important fact that the Investigating Officer Sri Jayanta Chakraborty had to be removed by an order of Court for his unbecoming conduct. The evidence of P.W.20, K. K. Mandal, in this regard is as follows:
"In the course of investigation, I received an order from the S.D.J.M. Ghatal, directing police to change the I.O. of the case for investigation and accordingly as per order of the S.D.J.M. concerned, I made over the case namely the diary of the case to O.C. of C.K.P.S."
13. P.W.11, Ajit Kumar Dolui, deposed with regard to the meeting as follows:
"About 1 year 1 month before this date I had been to the house of Ganga at Sitarampur along with Dasharath Mullick, her father. It was in the month Srabhan. There father of Ganga requested the father-in-law of Ganga, her husband and her mother in law not to assault him any further and that money would be paid as soon as possible immediately thereafter."
14. There is no cross-examination on this part of his evidence nor is this part of his evidence open to the same criticism advanced by Mr. Bapuli, learned counsel, appearing for the appellants, that this fact was not disclosed during examination u/s 161 Cr PC.
15. From the evidence noticed above, it is difficult to hold that the case appearing in the written complaint and the evidence given in Court are inconsistent. The mere fact that the in his written complaint stated that a sum of Rs.4,000/- was demanded by way of additional dowry and in the Court, he deposed that a sum of Rs.6,000/- was claimed, does not alter materially the fact that the demand for dowry was there. It is also proved that such demand was not met as a result whereof there was discontent and the deceased was tortured. In order to put an end to that torture, the P.W.3, Dasarath Mallick, accompanied by his relations and villagers, went to the matrimonial house of the deceased. He sought intervention of the villagers in the matrimonial house of his daughter. In their presence, he requested the accused persons not to torture his daughter. He also told them that he already had given whatever he could provide and he promised to give further but the torture should be stopped. Within 2 months thereafter, his daughter died.
16. We are, for the reasons discussed above, unable to accept the submission advanced by Mr. Bapuli, learned counsel, for the appellants.
17. The second submission advanced by Mr. Bapuli, leaned counsel, for the appellants, was that the written complaint was lodged three months after the date of the incident. He added that the complaint deposed to have been sent to the police and the other authorities of the executive have not been produced in Court, and, therefore, there is no knowing as to the contents thereof.
18. This submission, we must say, is not void of substance altogether. The P.W.19, S.I. Jayanta Chakraborry, admitted in his examination-in-chief that on 29th September, 1988, a letter was served which was evidenced by the concerned acknowledgement due card marked Exhibit-2/2, but he added that he had no knowledge about that letter. When the letter was duly received, it should have been produced. The P.W.19, S.I. Jayanta Chakraborty, himself was not interested to proceed with the investigation with all sincerity which is evidenced by the fact that he had to be removed by an order passed by the concerned learned S.D.J.M. as already noticed from the evidence of P.W.20, K. K. Mandal.
19. We have evidence before us to show that the complainant party went to the police, but the police was reluctant to even hear them.
20. P.W.3, Dasarath Mallick, deposed in this regard as follows:
"On the following day we had been to P.S. and at that time Daroga Babu told me that he had taken all possible steps in the matter and asked us to go away from the place. On the next day while we were crying, Dulal Roy, a teacher came to our place and I narrated the incident to him. I also told him that no action was taken by the police. I requested him to write out a complaint as per my instruction. Accordingly, he wrote out the complaint in his own hand and signature. It was read over and explained to me and I gave my LTI on the same. We sent those letters to the S.P., D.S.P. and another police officials by registered post."
21. The evidence of P.W.3, Dasarath Mallick, has been corroborated by P.W.10, Dulal Kanti Roy, who deposed as follows:-"I know Dasharath Mollick of village Kuyai. In the month of 11th day of Aswin and according to English calendar in the year 1988 when I was returning from my ''school while passing by the side of the house of the said Dasharath, I heard the inmates of the house weeping. I asked Dasharath what happened in his house. He said that his daughter died one day before that day. He also reported that some of their members of the family had been to P.S. and that no diary was accepted or recorded by the P.S. I then advised him to inform the P.S. in writing by post. On 11th day of Aswin a letter was written out by me as per the instruction and that on the very day the letters were sent to P.S. and other police officers of the district."
22. P.W.15, Manik Mallick, brother of P.W.3, Dasharath Mallick, deposed in this regard as follows:
"On receipt of the information about the death of Ganga, we went to the house at Sitarampur. We reached there at about 5.30/6 p.m. We could not see the dead body of Ganga. We have been told that the dead body of Ganga had been sent to P.S. I then returned home thereafter. On the next day we reached P.S. and narrated the incident to the Police Officers. The Barababu (officer in charge) told that all steps had been taken already and asked us to go back to our place. We accordingly returned home."
23. From the evidence noticed above, we have no doubt that the police was inactive. It was deliberately inactive. They refused to accept the complaint. They did not act upon the letters received under registered cover from the complaint. There is no wonder that those letters were not produced during the trial.
24. We are, in the circumstances, unable to attach any importance to this submission of the learned counsel for the appellants.
25. The third and the last submission advanced by Mr. Bapuli, learned counsel, appearing for the appellants, was that the post-mortem report was not exhibited. According to him, in the absence of the post-mortem report the learned trial Judge had no basis to convict the accused persons.
26. We are unable to accept this submission. The post -mortem report by itself is not a substantive piece of evidence. The autopsy surgeon, Dr. Dutta, was examined and cross-examination was declined. His evidence in extensor is set out hereinbelow:
"I am medical officer posted at Ghatal Sub-Division Hospital. I am there as such since 1984. On 27.9.88 I held the post-mortem of the dead body of Srimati Gangarani Khan, female, Hindu aged about 18 years being brought and identified by constable 280 Lakshmi Majumdar in connection with C.K., P.S. U.D. Case No. 43 (88), dated 26.9.88. On examination of the dead body, I found the following injuries.
1) The dead body is partly decomposed and odematus and blister formation. R.M. present both lower and upper limbs. Tongue protruded froth coming from nose and mouth. Stool coming of rectum. Cynoisis present in nail and feet. Ligature mark: Ill defined ligature mark due to decomposition of the dead body fond in the right side of the neck and front. Mark of knot right side below angle of jaw. Ligature mark is also found in front of the neck. Hyoid bone healthy. 2nd cervical vertibra dislocated. Other portions are healthy. On dissection I found uterus eortant faetal male length 8" about 30 weeks pregnancy.
Death in my opinion was due to the cause of asphyxia due to hanging which is suicidal and ante-mortem in nature."
27. By declining to cross-examine the autopsy surgeon the fact that his evidence was unexceptionable was expressly or impliedly accepted. Moreover, the fact that Gangarani Khan committed suicide has not been disputed by anyone. There is even no suggestion that she did not commit suicide. We have before us the inquest report marked Exhibit (3) conducted by the P.W.17, A.S.I., Sanatan Goswami, which largely supports the evidence of the P.W. 16, Dr. A. K. Dutta.
28. The deceased Gangarani Khan died within fifteen months of her marriage. She at that point of time was pregnant carrying a foetus aged about twenty-eight weeks. Immediately after marriage there was demand for additional dowry which the parents of the deceased could not meet as a result whereof she was subjected to torture - both physical and mental. In order to restore peace, the father of the deceased, accompanied by his relations and villagers, went to the matrimonial house of his daughter. He pleaded with the accused persons not to torture his daughter. He told them that he had already given whatever he could provide and he promised to give further and pleaded that the torture should at once be stopped. According to the evidence before us, this meeting was attended by the residents of the village where the matrimonial house of the deceased was situate. The requests and the importunes of P.W.3, Dasarath Mallick, and his companions did not yield any fruitful result. Gangarani Khan committed suicide shortly thereafter, may be within 2 months.
29. Section 113A of the Evidence Act provides as follows:
"113A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been atetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
30. The facts found and indicated above, leave no manner of doubt that all the ingredients for the purpose of raising presumption u/s 113A of the Evidence Act, are present in this case. Therefore, the findings of the learned trial Judge appear to be quite reasonable.
31. We are, in this circumstances, of the view that there is no scope for any interference.
The appeal is, as such, dismissed.
32. The appellants are now in jail. They are directed to serve out the sentences awarded by the learned trial Court.
Let a copy of this judgment and the Lower Court Records be sent down to the concerned learned trial Court forthwith for information and necessary action.
Let an urgent xerox certified copy of this judgment, if applied for, be delivered to the learned counsel, for the parties, upon compliance of all usual formalities.
Kishore Kumar Prasad, J.
33. I agree.
