STATE OF WEST BENGAL Vs. DIPAK HALDER

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court directing acquittal of the three appellants before it who are described hereinafter as accused Nos. 1, 2 arid 3 respectively. Respondent No.1- Dipak Halder was married to one Rimu (hereinafter referred to as the 'deceased'). Alleging that deceased Rimu was killed by respondent No. 1 and that she was tortured, for non-fulfilment of dowry on demand, prosecution was launched. Charge under Section 498A read with Section 341 of the Indian Penal Code, 1860 (hereinafter referred to as the 'Code') was framed against all the three accused persons. Charge under Section 302, IPC was framed against respondent No. 1, Dipak Halder while charge under Section 302 read with Section 109, IPC was framed against other two accused persons.

(2.) Prosecution version in an outset is as follows : The deceased Rimu, daughter of Bimalendu Ganguly, was married to accused Dipak Halder on 18.2.1986. Bimalendu failed to pay the agreed dowry amount of Rs. 10,000/- on the date of marriage. Although the other articles which he agreed to give by way of marriage gift were duly given. Due to non-payment of dowry money of Rs.10,000/-, the bride Rimu had to face ill treatment and torture at the hands of her husband Dipak, her mother-in-law Dipali and also her brother-in-law Pradip. It is alleged that after the marriage Rimu was physically tortured and she was often denied food. The ill treatment and torture, within a short time of marriage compelled the victim girl to return to her father's place along with her husband. On that occasion, the victim Rimu with her husband Dipak stayed for 3 weeks in the-house of Bimalendu Ganguly (P.W. 1), the father of the victim. After 3 weeks Rimu was taken back to her in-laws place by her husband. At that time Dipak assured her that there would be no further torture. Again Rimu had to take shelter in her father's place. On that occasion a diary was lodged at the local P.S. by her husband who also accompanied Rimu, to her father's place, and stayed there for sometime with the Victim. This time, she and her husband, started living in the house of Tejendra Nath Bose (P.W. 12), a well wisher of the family, till they got an accommodation, at a nearby place. In this way after 3 months they shifted to a flat of Nazir Bagan Lane within Kasba P.S. At that time Rimu was pregnant and subsequently she gave birth to a daughter on 10th of December 1986. After she returned home, mental torture on her which gradually took shape of physical torture started. It is further alleged that accused Dipak was seen agitated, some times became violent whenever he used to go to his own house at Tanu Pukur and met his mother. The matter reached its climax on 25th October, 1987 when the victim wanted money for Bhratri Ditia. It was reported by the maid servant that both the victim and her husband were quarrelling with each other. Half an hour after that some young boys of the locality came running and reported that Rimu had been burnt. Getting this information, the wife of the informant rushed to the spot. Even at that time she was abused and insulted by her husband Dipak before the local people. Rimu was taken to the hospital by the local people in the car of Mrs. Binita Dhar. In spite of request, her husband Dipak refused to accompany the victim when she was taken to the hospital. On the next day, the victim succumbed to her injuries. Charge under Section 302, IPC was framed against accused Dipak Haldar for causing the death of the victim Rimu. The other two, Dipali, the mother of the principal accused Dipak and his brother Prodip were charged under Section 302 read with Section 109, IPC for abetting the murder. All the three accused were also charged under Section 498-A read with Section 34 IPC. The trial proceeded when the accused pleaded not guilty to such charge. In order to bring home the charge, the prosecution in all examined 46 witnesses. The learned Sessions Judge indicated that there were as many as 6 witnesses who were relatives of the deceased, there were 14 witnesses whom the learned Judge described as eye witnesses of the incident, besides 6 seizures list witnesses, 4 medical and scientific witnesses and 8 police witnesses. Regarding the offence punishable under Section 498A, IPC, the learned Judge relied on the evidence of the parents and brother of the victim who have been examined as PWs. 1 to 3. Besides, he heavily relied on a G.D. Entry Ext.30 stated to be lodged by the accused Dipak Halder and also Ext.4 a counter part of pay in slip of Indian Bank which the learned Judge in the judgment has described as bank draft. He also relied on the evidence of Soma Ganguly (PW.4), the sister of the deceased and Dipti Dutta Roy (PW 19) a resident of Nazir Bagan and a close neighbour of the place where the deceased used to reside with her husband before her death. The learned Judge also considered the statement made by the accused Dipak on being examined under Section 313 Cr.P.C. admitting that often he created pressure upon the deceased for cooking various items of food. Regarding the charge of murder against the principal accused Dipak Halder, the learned Judge first of all relied on the background of the incident, as revealed through the evidence of the prosecution witnesses that in the morning of 25.10.1987, the deceased Rimu paid Rs. 100/- towards the cost of Bhaiphota by going to her father's house without the consent of her husband. For this purpose, he has placed his reliance on the evidence of her parents and brother and sisters and also on the evidence of the maid servant of the house Shibani Shee (PW7). He also placed reliance on the evidence of Rita Bose (PW 27), a resident of Nazir Bagan who met victim Rimu in the morning of 25.10.1987 at the sweet meat shop where Rimu reported to her that she made a contribution of Rs. 100/- without the knowledge of her husband for which she might punished. Coupled with this, the learned Judge also considered some other circumstances like (i) the wearing apparels of the victim contained smell of kerosene oil and the stove of the house did not burst, (ii) there was quarrel between the couple in the night previous to the incident. Even the quarrel was going on immediately before the fire, (iii) the doors and windows of the house were closed at the time of the fire, (iv) the post mortem report suggested that Rimu had been assaulted previous to the fire, (v) deceased Rimu tried to save herself from the hands of the accused Dipak and for the reason came out of the house and took shelter in the house of Tejender Narayan Bose (vi) there was no evidence that accused Dipak tried to save deceased Rimu or raised any alarm, (vii) when the neighbours to put off the fire accused Dipak was seen hurling abuses to the deceased and her parents. Considering all these came to a final conclusion that charge under Section 302 levelled against the principal accused Dipak had been proved beyond doubt. But at the same time he also came to a further finding that charge under Section 302 read with Section 109, IPC against the other two accused persons was not proved as there was no evidence that the other two accused aided or abetted the accused Dipak to commit the murder. He, however, held that charge under Section 498A stood proved against all the three accused and passed the order of conviction and sentence. An appeal was preferred by the respondents herein questioning correctness of the judgment of the trial Court holding accused persons guilty. By the impugned judgment, the High Court accepted the appeal and directed acquittal. The same is in challenge by the State in the present appeal. It is to be noted that in the meantime, accused No. 3, Smt. Rupali Halder, has expired. The High Court held that there was no material to sustain the charge under Section 302, IPC, but held that the circumstances on which prosecution placed reliance did not present complete chain of circumstances and, therefore, the accused persons are entitled to acquittal. State's stand in this appeal is that the circumstances which were highlighted were clearly established. Without even analyzing the circumstances, the High Court came to an abrupt conclusion that the prosecution has failed to substantiate the allegations.

(3.) Learned counsel for the respondents supported the judgment.