KRISHNA TEWARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The judgment and order of conviction dtd. 25/5/2009 under Sec. 498A/302/201 of IPC passed by the Learned Additional Sessions Judge, Fast Track, 1st Court, Siliguri was under challenge at the instance of the appellant/convict on the grounds, inter alia, that though the written complaint was scribed by one Baneswar Dasgupta, the PW6 being the defacto-complainant deposed that the said FIR was scribed by Praneshwar Das. The Scribe was not examined. Furthermore, in the written complaint there is no endorsement that the said complaint was read over and explained to the defacto-complainant after writing the same. Neither the scribe nor the defacto-complainant i.e. the PW6 was examined under Sec. 161 of the Code of Criminal Procedure, 1973. The signature or thumb impression of the FIR maker on the Formal FIR was not taken as per the provisions of law. Though the PW-6 and PW-7 deposed that FIR was lodged at 9:30 A.M. in the morning but the FIR shows that it was recorded at 2:35 P.M. From the evidence and materials on record the ingredients of offences punishable under Sec. 498A of IPC were not proved. There was no material showing that the accused demanded dowry or money from the relatives of the victim during her lifetime. No witness had seen the accused to inflict torture upon the victim. Therefore, offence punishable under Sec. 498A IPC is not proved. The prosecution has further failed to prove the ingredients of offence punishable under Sec. 201 of IPC but in spite of that the appellant was convicted under Sec. 201 IPC.

(2.) Learned counsel Mr. Banerjee has further submitted that the offences punishable under Sec. 302 IPC was not proved. The PWs 2, 3 and 4 did not say that they saw the appellant to commit the murder of his wife. Nobody saw the convict committing such a heinous offence. It is further submitted that though the PW11 who held inquest has stated in his report that from primary investigation he came to know that the appellant physically assaulted the deceased which resulted her unnatural death, but, on the other hand, PW4, PW6 or PW7 did not state that they disclosed the cause of death of the victim to PW11. No rough sketch map was prepared by the I.O. and no place was marked pointing as the place of occurrence where the victim died. During investigation, the I.O. did not ascertain as to how the victim died or if any weapon was used to cause the murder. The medical evidence which is relied upon by the prosecution cannot be sacrosanct evidence. At best the same may be the opinion of an expert. No weapon of offence was recovered though the appellant was arrested on 2/7/2001. It was the specific defence of the accused/convict/appellant that the victim died in a delivery case, further the victim was suffering from asthma who died after the delivery of a child due to weakness or sickness. The doctor who held the post mortem report did not mention that the death was caused due to multiple injuries. The doctor did not find any cut injury. The victim gave birth to a child just three days before her death. The inquest maker noticed that the stomach of the deceased was swallowed in his report but it did not mention that the victim gave birth to a child before her death. According to the learned counsel, if the doctor actually did the post mortem examination in a proper manner, he could have found that the victim sustained the injuries at the time of delivery of the child. It is not correct application of mind that the appellant was under an obligation to prove as to how Kusum died. The prosecution has failed to show that appellant/convict was in the precincts of the place of occurrence at the time of incident. Examination of the accused under Sec. 313 Cr.P.C. is a matter of vital importance but the Learned Trial Judge did not record the examination of the accused under the above Sec. in proper perspective. No question was put to the accused that as per prosecution evidence the accused was in the room and he alone caused the death by blunt weapon.

(3.) Learned counsel for the accused /appellant has further submitted that assuming and not admitting, the appellant assaulted his wife, then such assault was made upon the victim by lathi or fist. There was no intention to cause death. In the event this court finds that the present appellant committed the crime of culpable homicide upon the wife on the relevant date, such act should not be viewed within the scope of Sec. 302 of IPC. At least the same should be treated as an offence punishable under sec. 304 Part-II of IPC. The learned counsel has relied upon the following judgments:-