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IN THE COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE,
FAST TRACK COURT, 1st COURT, ASANSOL (BURDWAN)
Present:- Harjinder Singh, Additional District and Sessions Judge.
Dated, Asansol the 30th day of July, 2002.
State vs. Sambhu Kesari and five others.
Sessions Case No.163 of 2001
Sessions Trial No.42 of 2001
under Sections 498A/304B I.P.C.
J_U_D_G_E_M_E_N_T
The complainant Om Prakash Keshri of village Rohini P.S. Jasidih District: Deoghar (Bihar) on 01-06-99 lodged an F.I.R. against the accused Sambhu Keshri, (husband), Bhagwan Das (Father-in-law), Bejoy Keshri (husband's elder brother), Smt. Gouri Keshri, (Mother-in-law), Smt. Gita Keshri (w/o Bejoy Keshri) and Smt. Dhobin Devi the paternal aunt of the husband of the deceased Mamata Keshri D/o Badri Prasad Keshri in respect of an incident that took place since two years ago till 15.12 hours of 01-06-99 at the house of accused persons at Jamuria, P.S. Jamuria, District: Burdwan.
The complainant in his F.I.R. alleged that his sister Smt. Mamata Keshri aged about 22 years got married to Shambhu Nath Keshri S/o Bhagwan Das Keshri some two years prior to the lodging of the F.I.R. Since after her marriage, the in-laws of his deceased sister subjected her to cruelty and told her quite often t bring money from the family of the complainant and in case their demands were not complied with, they used to assault his sister. On 29-05-99 his another brother-in-law Shri Bali Ram Keshri – a resident of Raniganj – went to see Mamata and at that time Mamata told him regarding her sorrows. She told him that her husband Sambhu Keshri, father-in-law Bhagwan Das, elder brother of his husband Bejoy Keshri, W/o Bejoy Keshri, her mother-in-law and sister of her father-in-law Dhobin Devi, all of them subjected her to torture and assaulted her and they have told her to bring an amount of Rs.20,000/- from her father otherwise they threatened her that they will kill her. Thereafter, keeping in view the gravity of the situation, complainant's brother-in-law Baliram Keshri communicated this fact to the complainant over telephone on 30-05-99. On receipt of this information, the complainant and others left for Raniganj and on arrival at Raniganj they learn t from their brother-in-law that the accused persons have killed complainant's sister by putting her on fire. Under the circumstances, the complainant prayed for necessary action against the accused persons. On receipt of this F.I.R., the O/C Jamuria P.S. started Jamuria P.S. Case No.79 dt. 01.06.1999 u/Secs.498A/304B I.P.C. against the F.I.R. named accused persons. The case was endorsed to the I.O. Bibekananda Singha for investigations who after completion of investigations, submitted a Charge-Sheet No.32 dt. 26-04-2000 u/Secs.498A/304B I.P.C. against the accused persons.
The ld. Judicial Magistrate, 2nd Court, Asansol Shri P.C. Karmakar on 18-07-2001 committed the case for trial to the Sessions Court. After transfer of this case to this Court, this Court framed a Charge u/Secs.498A/304B I.P.C. against the accused persons on 14-12-2001. The accused persons pleaded not guilty to the charges and claimed to be tried. The accused persons neither filed any W.S. as envisaged u/Sec.233 of the Cr.P.C. nor adduced any evidence in support of their defence case.
POINTS FOR DETERMINATION
Did the accused persons subject the deceased Mamata Keshari to any mental and or physical cruelty over any demand of Rs.20,000/- to drive her to commit suicide during the period and at their residence as alleged?
Did the deceased Mamata die or burn injuries and if her death occurred otherwise than under normal circumstances within seven years of her marriage, as alleged?
Did the accused persons cause dowry death of the deceased Mamata Keshari on the date, time and place as alleged?
Are the accused persons guilty of having committed an offence u/Secs. 498A/304B I.P.C. or any one of them or entitled to the benefit of doubt, if any?
DECISION WITH REASONS
Points Nos. 1 to 4 :- All these points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. The prosecution examined 10 witnesses and proved six documents marked Exts.1 to 6 in support of their case. A perusal of Sec.304B, which deals with dowry death, it would be revealed that the following ingredients are required are required to be established by the prosecution to establish the fact that the death in question was dowry death:-
The death of the house-wife takes place within seven years of her marriage.
The death is caused either by any burns or bodily injury or otherwise than under normal circumstances.
Soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.
Now, before taking-up the merits of this case and after having narrated the prosecution case, I feel that I should at the very outset also put forth the defence case as was put-forth before me at the time of arguments, which is as follows:-
The accused persons have been falsely implicated in this case and there is no credible evidence before this Court worth relying upon except the evidence of PW-1 ( Baliram Keshori ) who allegedly met the deceased before her death.
The evidence on record does not disclose the nature of cruelty to which the deceased was subjected i.e. it is not clear if the same was harassment for dowry or of physical assault or a nature that would drive the deceased to commit suicide.
The F.I.R. does not disclose any allegation of dowry demand and no dowry was demanded at the time of marriage. Therefore, there is no question of subjecting the deceased to torture and cruelty for fulfillment of any such dowry demand.
From the evidence adduced, it is not clear from whom the amount of Rs.20,000/- was demanded i.e. from the father of the deceased or PW-1 (Baliram Keshori) the husband of the elder sister of the deceased.
Since there is complete absence of credible evidence regarding torture upon the deceased, the accused persons cannot be held responsible for the suicide committed by the deceased?
The deceased along with her husband and son lived separately from the other accused persons and therefore, the other accused persons has no opportunity or occasion to subject the deceased to any torture.
The gap between last line of F.I.R. and signature proves that the paper was signed earlier, but the complaint written later on.
I shall discuss all these points at the time of deciding relevant questions of disputed facts of this case. But, I feel tempted to point out that the foundation of the main defence of the accused persons is the presumption that the deceased committed suicide. But, a dowry death is not always suicide. As such, I am of opinion that first of all, the Court should decide the nature of death the deceased suffered, as this is undoubtedly the most pertinent and crucial part of this case.
PW-7 (Dr. Madhumita Das Gupta), who conducted P.M. over the dead body of the deceased in her evidence stated, “On 1.6.99 I conducted post-mortem over the dead body of Mamta Keshari brought by Constable No.3002 Shyamal Dutta. The deceased was adult female of age 22 years, of average build and nutrition. On examination I found deep burns covering the whole body including soles of feet and front of scalp. The cranial membranes were congested, Brain and Spinal Cord was congested, Pleurae congested, no foreign body found in Laryinx and Tracheae. Both Lungs congested, Peritoneum congested, Heart and Vessels were healthy. Peritoneum congested, Mouth, Pharynx and Oesophagus, Stomach, Intestine congested. Liver, Spleen etc. etc. Congested. Uterus non gravid. The death in my opinion occured due to the injuries sustained.” She in her cross examination stated,”It was not possible for me to say whether the burn injury sustained were accidental, suicidal or homicidal.”
Ext.4 is the Post-Mortem report. There are two important points worth noting in the Post Mortem report which are worth mentioning. The P.M. report under the caption 2 – Wound – Position, size, character reads, “ Deep burns covering the whole body including soles of feet and front of scalp.” against the caption 3-Larynx and Tracheae, the P.M. report records, “No foreign body.”
PW-10 ( Bibekananda Singha ) in his evidence stated, “ This Jamuria P.S. Case No.79/99 dt. 01.06.1999 u/Secs. 498A/304B was endorsed to me by the then O.C. Dipak Chattaraj for investigation. Before that on 31.05.1999 at 20.45 hours one Jaydev Ghosh S/o Kalipada Ghosh of Jamuria village lodged an information that on 31.05.1999 in the night he came to learn that Mamta Devi W/o Shambhu Keshari has died of burn injuries. (Objected to). On the basis of this information Jamuria P.S. U.D. Case No.25/99 was started by the then S.I. Dipak Kr. Chattaraj O.C. Jamuria P.S. On the basis of the said U.D. Case, I went to Jamuria village and seized certain alamats some ash of burnt clothes, one Kaintha in burnt condition and one polythene Jariken which contained half litre of kerosene oil and one match stick from the P.O. which is the bed room of the deceased Mamta.”
PW-6 (Susanta Sekhar Das) the Executive Magistrate in his evidence stated, “The face of the dead body was upwards. The face was in burnt condition and was open. Eyes were damaged..........”
All the aforesaid evidence is the unchallenged version of responsible and impartial witnesses holding public offices. From their evidence, we can safely conclude the following:-
That the deceased Mamata got burnt in her own bet-room from which the alamats in burnt condition were recovered.
Seizure of burnt articles such as Kaintha – a part of bedding shows that the burning took place when the deceased was in sleeping posture or condition.
The nature of burn injuries sustained as per Ext.4 such as burnt soles and front portion of scalp confirms that the deceased at the time of death was in sleeping posture on account of which the soles which were not in contact with the grounds got burnt while only front exposed portion of the scalp got burnt while the back portion of the scalp in contact with earth or Kaintha below on account of non supply of oxygen to the surface in contact did not get burnt. No doubt, PW-6 (Susanta Sekhar Das) found the face of the dead-body pointing upwards.
Absence of any foreign body in tracheae like shoot particles indicate that the deceased was already dead or at least not breathing when she was put on fire as had she been then alive, she would have inhailed the smoky flames resulting in deposition of foreign particles like shoot in her trachea.
The kerosene container containing some kerosene oil near the P.O. was probably planted subsequently by the accused persons to create the false impression that the deceased committed suicide to misguide the investigating agency. A person committing suicide would normally pour the entire container upon her body to ensure success of the mission, would be in standing position to facilitate pouring of oil all over one's body and therefore her soles being in contact with earth would not burn. It is difficult to drench the soles with Kerosene Oil in sleeping condition.
The pain of burning is so intense and severe as we know that even a momentary contact with a hot substance results in reflex action of withdrawal at once to avoid heat and it is next to impossible that a person with his body aflame would remain sleeping immobile on the cot. Had she been alive, she would have been found either near door or near or on her way to some water source before dropping dead or unconscious.
Hon'ble S.C. in Sarojini v State of M.P. in a similar case evaluated some inter-alia other factos of evidence as follows to conclude that the death was homicidal and not suicidal:-
15) The roof of the room was blackened, burnt and the raftors have fallen down.
16)Large quantities of carbon smoke must have been accumulated in the store and Rajini before death must have breathed and the absence of carbon soots or black soots or its traces in her lungs clearly proved that the death was homicidal.
In the case of Ganeshlal v. State of Maharashtra, 1992 (2) Crimes 151 Hon'ble SC observed that the circumstances based on the evidence were so clinching that it left no doubt that the death was not suicidal but homicidal and such circumstances were :
No outsider had any access to that part of house where the occurrence took place.
There is no evidence or even suggestion that the deceased had any tendency to commit suicide or was affected with any psychosis for committing suicide.
She was found lying on back in a supine position.
Her back and clothes on her back were not burnt.
There is no evidence of any struggle by her, as there was no injuries on her back or rubbing the ground.
Kerosene tin was found and there was no signs of kerosene being sprinkled in the room.
No sign of any attempt by her to put out the flames in agony of being aflamed.
She must have been unconscious before kerosene was poured on her.
Hon'ble S.C. in Prabhudayal v. State of Maharashtra, AIR 1993 S.C. 2164 observed while evaluating evidence, “In burn cases, brain is usually shrunken and firm, whereas in strangulations, it is congested.” In this case also we find as per Ext.4 – the P.M. report – that the membrane, brain and spinal cord were in congested condition suggesting strangulation and death prior to burning. The accused persons, it appears with a view to camouflage a homicide into a suicide, put the dead body or in nearly dead condition her body on fire and placed a K. Oil Jerikane nearby to give it an appearance of suicide by the deceased.
Once having shown that the deceased did not commit suicide, the defence case that there is no direct evidence regarding commission of torture/cruelty on the part of the accused persons, that there was absence of dowry demand falls to the ground inert like a rope of sand and the unimpeachable, unchallenged medical evidence of the doctor and the I.O. referred to above exposes the cold blooded and planned manner in which the life of a helpless house wife was sniffed out by the accused persons. Against the background of aforesaid medical evidence and conclusion, let us now examine what did the deceased tell. PW-1 (Baliram Keshri) in his evidence stated, “I am a resident of Raniganj Bazar under P.S. Raniganj. The deceased Mamata was my sister-in-law. She got married on 09-05-97 to Shambhu Keshri of Rahani in the district of Bihar. After marriage, she went to her in-laws house in Bihar. One year after, I again visited her and at that time she told me that the accused persons are maltreating her. On 29-05-99 when I went to Jamuria she requested me to give money amounting to Rs.20,000/-, and she told that in case money was given, her life shall be spared otherwise she will be killed by the accused persons. I returned after half an hour's stay in her house. On 30-05-1999 from her in-laws house, I received a telephone from my Rahani and over telephone we were told to bring a sum of Rs.20,000/- which was required to be given to the accused persons. On 31-05-99, I was told over telephone by somebody that my sister-in-law had died by burning. The person who gave me the information over telephone did not disclose his name and disconnected the line. I received this telephone on31-05-1999 in the evening, and on the next day i.e. on 01-06-99, I went to Jamuria P.S. and there I saw the dead body of my sister-in-law lying on a Thella.”
The deceased was probably aware that her parents would not be able to provide Rs.20,000/- which was demanded by the accused persons and aware of the dire consequences that may follow in case money was not paid before the dead-line expired, so she requested Baliram Keshri to pay the money so that her life may be spared. She could demand the amount as a matter of right from the parents, but could only request a brother-in-law to pay immediately, as a stop-gap arrangement, to avert her fatal end as because she realised she had no right against Baliram nor he had any obligation to pay.
PW-2 ( Om Prakash ) in his evidence corroborated prosecution case in all material particulars, except a minor discrepancy regarding the date of visit. PW-2 ( Om Prakash Keshri ) in his evidence stated, “ On 25-05-99 my brother-in-law Bali Ram Keshri went to meet Mamata at Jamuria. Mamta told her grievances to Baliram Keshri. She told him that her husband Shambhu Keshri, her father-in-law Bhagwandas Keshri, her elder brother-in-law Gouri Devi and paternal grand-mother-in-law Dhobin Debi were subjecting her to different kinds of torture and demanding her to bring Rs.20,000/- from her father's house and assaulting her. She told her to inform her father that in case this amount is not given she would be killed. Considering the seriousness of the matter, Baliram informed us the details over telephone to us. On hearing this, we on 31-05-99 left for Raniganj. On reaching Raniganj, we learn t that Mamta has been burnt to death. On 01-06-99 we went to Jamuria P.S. in the morning and found that the incident was true. I have seen the burnt dead body of Mamata lying on a Thella. On 01-06-99, I lodged a complainant with the Jamuria P.S.”
PW-8 ( Pradeep Kr. Keshori ), the brother of deceased in his evidence too corroborated the prosecution case and the evidence of other key prosecution witnesses cited earlier. He in his evidence stated, “ I live at Rohini village under P.S. Jasidi under Jharkhand State. Mamata was my sister. She got married to Sambhu Nath Keshri at Jamuria on 09-05-97. After marriage, she went to the house of her-in-laws to stay there. A few days after marriage, the accused persons started torturing her. They told her to bring an amount of Rs.20,000/- or otherwise, they would kill her.” In short, we have overwhelming, corroborative and credible evidence before us to show that the accused persons told the deceased to bring the amount of Rs.20,000/- as demanded by them from her father or any other source (like Baliram Keshri) failing which, they threatened to kill her. When a demand is made, often a dead line is also set. Therefore, the date of death of the deceased is equally important. PW-10 ( Bibekananda Singha ) in his evidence stated, “ On 31-05-99 at 20-45 hours one Jaydev Ghosh S/o Kalipada Ghosh of Jamuria village lodged an information that on 31-05-99 in the night he came to learn that Mamta Devi w/o Shambhu Keshri has died of burn injuries.” Therefore, Mamta was dead before 20-45 hours. Both this date and time of death are important. Her life came to an end with the last day of the month coming to an end. In other words, circumstantial evidence irresistibly indicates that she was told in no uncertain terms that unless the demand of the accused persons was met before the expiry of the Month of May, 1999, her life would come to an end. This explains why she requested PW-1 ( Baliram Keshri ) to give her Rs.20,000/- and why there were frantic telephone calls and why she had to die on 31-05-1999.
Hon'ble S.C. in Om Prakash v. State, (1992) 4 SCC : ( 1992 ) 2 DMC 353 observed, “ In a case of death because of torture and demand for dowry, it is the duty of the court to examine the circumstances of each case and evidence adduced on behalf of the parties for recording a finding on the question as to how the death took place. While judging the evidence and circumstances of the case, the court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present.”
Keeping in view the aforesaid ruling, I am of opinion, there can't be a better proof in support of dowry death than what is available in this case which is the deceased asking PQ-1 ( Baliram Keshri) to pay the amount and also telling him the consequences of non-payment. The demand is repeated over telephone as per PW-1 again on30-05-1999 and on account of non-payment, the deceased dies of burn injuries and I have already shown why the death, from the circumstantial evidence, is found to Homicidal and not suicidal and even the date and time of death smacks of expiry of the period of ultimatum.
Now, let us take the defence (f) of the accused persons that since the deceased, her husband and child lived separately, the other accused persons neither had the time nor the opportunity to commit the crime. The deceased, as per evidence of several witnesses, married Shambhu Keshri on 09-05-97 and she died on 31-05-1999. Her husband Shambhu Prasad Keshri in his 313 Cr.P.C. statement in reply to Qn. No.11 stated that he used to live only with his wife and one child. The child at the time of death of Mamta Keshri must be hardly one year 3 months or less in age. A one year old child normally keeps clinging to her mother and no mother would think of suicide for the sake of future of the child. In case, she decides to commit suicide, her first instinct would be to kill the child first so that the child is not left to the mercies of persons hostile to her and her child's interest. In this case, though Kaintha etc. got burnt, no injury was supposedly caused to the child, indicating that the child was removed from the custody of the mother before the beastly crime was committed.
Now consider the fact that no cries were heard by any one, none of the accused persons received any burn injuries while trying to rescue the deceased when she was on fire, and the death is found to be homicidal, therefore, the circumstantial evidence is irresistibly indicating that it was not a one man job. Without several accused persons acting together, such a feat cannot be accomplished. One man cannot all alone pin down the victim so nicely that no sign of any struggle is noticed, and then he also successfully throttles the victim to death. It requires many people to accomplish such a result. If four people press the four-limbs of the victim to ground, the fifth throttles the victim to death, say by pressing a pillow, upon the mouth to suffocate her to death and the sixth accused hold the one year old child away, then only such a feat is possible. In such manner, no noise would be heard and this appears to be the only method how the beastly act was accomplished as this would explain all the abnormal facets of this death i.e., absence of noise, absence of unburnt carbon particles of smoke in trachea, burn injuries on soles of the victim while absence thereof on the back portion of scalp, the dead body lying with the face looking upwards – the continuation of sleep posture in which she was first killed and then burnt to camouflage suicide. The accused persons, in their 313 Cr.P.C. examination were duty bound to explain these circumstances and their own conduct. Hon'ble S.C. in Ganeshlal v. State of Maharashtra, 1992 Cri.L.J. 1545 observed, “..........It is a settled law that the conduct of the accused in an offence previous and subsequent to the crime are relevant facts. On the contrary, the husband falsely proclaimed that there was short circuit; implying to scare away the people from attempting to save her. These are most telling and relevant crucial facts apart from repulsive human conduct. The false plea of suicide is yet another relevant fact. When the death had occurred in their custody, the accused was under an obligation in S.313 Cr.P.C. statement at least to give a plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. These facts are completely inconsistent with the innocence, but consistent with the hypothesis that the accused is a prime in the commission of the gruesome murder of his wife.” The accused Bhagwan Das in answer to question No.9 confidently stated that PW-1 Baliram Keshri did not even go on 25-05-1999. He could not have said so, in case he lived separately from his son Sambhu and daughter-in-law Mamta Keshri. His confidence smacks that he knew everything that happened in the house of Sambhu, which is possible only if he lived with Sambhu and the deceased. It may be that during night hours the young couple for the sake of privacy stayed/spent nights at some other place instead of cramming in one room with parents-in-law and brother-in-law. But this does not mean that the accused persons lived separately. In his 313 Cr.P.C. examination the husband accused gave his present residential address different from other accused persons, which again appears to be misleading as because then he can't take his now 3 years old child to the Biscuit factory where he is at present working nor he can leave the child alone at house. In other words, the family must be joint even now, as without help of other members of the family, such a small child can not be managed by the husband alone and therefore, the defence case of separate residence bursts like a bubble of balloon on being pricked with the needle of logic.
A perusal of evidence of the prosecution witnesses suggests that there is a ring of truth in the evidence of prosecution witnesses, despite a few discrepancies here and there. Honible S.C. in State of Rajasthan v. Kalki, 1981 Cri.L.J. 1012 observed, “ In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” I do not find any material discrepancies as may be described cutting deep into the root of the prosecution case. Honible S.C. in Bhoginbhai v. State of Gujarat, 1983 S.C. 753 (Para 5 and 6 ) summed up the various factors that lead to discrepancies as follows:-
“Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—
By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
The power of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another.
By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
In regard to exact time of an incident, usually people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time sense of individuals which varies from person to person.
Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take pace in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.” Therefore, I find that each one of the flimsy defences (a) to (g) taken by the Ld. Advocate for the accused persons as mentioned earlier vanishes into thin air on the face of credible evidence of the prosecution witnesses supported by medical evidence.
Similarly the entire prosecution case can not be thrown for non- examination of a few prosecution witnesses. Hon'ble Supreme Court in State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = AIR 1988 S.C. 1998 observed, “.... It is, therefore, not correct to reject the prosecution vesion only on grounds that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reasons to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside a criminal trial merely to see that no innocent man is punished. A Judge also presides over to see that a guilty does not escape. One is as important as the other. Both are public duties which the Judge has to perform....”
Hon'ble S.C. in Ratan Singh v. State of H.P., AIR 1997 SC 768 and Hon'ble Kerala H.C. in Mani v. State of Kerala, 1987 Cri.L.J. 1965 opined that F.I.R. is not an encyclopedia of the entire prosecution case. Since the death of the victim appears to be the work of the accused persons, the allegations of demand of Rs.20,000/- by accused persons can not be disbelieved. As regards the so called gap between the conclusion of F.I.R. and signature of the complainant, I find there is nothing to doubt that the F.I.R. story corroborates the facts as disclosed in evidence and also because no fixed style of writing F.I.R. can be laid down. Different people may adopt different styles of writing, but such different style in itself can't be a ground for rejection of the prosecution story. Hon'ble S.C. in Kirtan Bhunya and others v. State of Orissa, 1992 Cri.L.J. 2325 observed that in a Criminal trial the suspicion entertained by the defence could be of no consequences for that alone could not lead to discredit the eye-witnesses to the crime. In the end, I conclude that the prosecution has proved beyond all reasonable doubts all the main ingredients of the offences u/Secs.498A/304B I.P.C. against the accused persons by adducing cogent, reliable evidence supported by medical evidence. As such, all the four points are decided in favour of the prosecution and against the accused persons. Hence, it is,
O_R_D_E_R_E_D
that all the six accused person are found guilty and convicted for the offences u/Secs.498A/304B I.P.C. They are taken into Judical custody and their bail-bonds cancelled. Fix 31-07-2002 for production of the accused persons in Court for their examination u/Sec.235(2) of the Cr.P.C. on the question of sentence. Issue custody warrants accordingly.
( Harjinder Singh )
Additional Sessions Judge,
Fast Track Court, 1st Court.
A S A N S O L
31-07002 Examination of the accused persons u/Secs. 235(2) of the Cr.P.C.:-The accused persons are examined u/Sec.235(2) of the Cr.P.C. The accused Shambhu Keshri on being asked what he has to say regarding the question of sentence submits that he is innocent and tells the Court to impose whatever sentence the Court may like. He further asked this Court, what will be the fate of the child and his life. The accused Bhagaban Das on being asked what he has to state regarding the sentence submits that he has nothing more to submit because already he is on the verge of the end of his life. He further stated that he is a handicapped person and prays to be excused. Accused Smt. Gouri Keshri on being asked what she has to state regarding the question of sentence submits that she is innocent and she was not inside the house when the incident took place. She further submits that the family will face problems regarding the fate of the child Swati Keshri D/o Shambhu Keshri. The accused Bijoy Keshri on being asked what he has to submit on the question of sentence, submits that he has 4 children of school going age. The eldest daughter is aged about 14 years and the other children are born after a gap of 2 years to each other and according to him he has 3 daughters and one son. The son according to him is aged about 9 years. He prays for mercy. The accused Smt. Dhobin Devi on being asked what she has to submit regarding the sentence to be imposed, states that she is innocent. She further submits that if she is sentenced, her family will be ruined, and Smt. Geeta Keshri on being asked on the question of sentence submits that she wants to say that she is suffering from heart problem and she suffered heart attacks twice in the past. She further stated that yesterday also she suffered a heart attack after she was pronounced guilty. She prays that she should be excused and instead her husband may be awarded punishment. Having heard all the accused persons on the question of sentence, now this Court is confronted with the question of imposition of sentence. Some of the accused persons, say Bejoy Keshri and his wife Smt. Geeta Keshri on account of minor dependent children and present ill health of Smt. Geeta Keshri have good case for a lesser punishment. But the hands of the Court in view of the minimum penal provisions are tied. Hon'ble Supreme Court in Paniben v. State AIR 1992 SC 1817 observed that in awarding sentence, it would be a travesty of justice if sympathy is shown when cruel act is committed. Nevertheless , liability of each one of the accused tends to differ on account f his or her relationship with the deceased. Shambhu Keshri being the husband of the deceased is undoubtedly the main culprit in this case and his complete involvement in the crime from the beginning to the end can never be in doubt. He being the husband of the deceased in case he wanted, could very well have protected the interests of his wife. In India a husband is just like a God to his wife. Besides, had the amount of Rs.20,000/- as demanded by the accused persons been paid by the parents of the deceased, he would have been the maximum beneficiary of this amount. Keeping in view the brutal nature of the offence committed against a helpless wife, I do not find any reason as to why the life-partner of the deceased should not be awarded the punishment of imprisonment for life. In the next category falls the father-in-law and mother-in-law if the deceased. In Indian society, the father and mother command and get sufficient respect from their children. Therefore, in case they did not want, probably the offence might not have been committed. Therefore, they in my opinion deserve a punishment which should be commensurate with their status though lesser than the husband of the deceased but higher than the other accused persons. In my opinion a punishment of 10 years of rigorous imprisonment in their case would suffice the the ends of justice. So far as the other 3 accused persons are concerned, keeping in view their liability in respect of their children and their comparatively young age, in the case of accused Bijoy Keshri and his wife Geeta Keshri on the one hand, and in view of a little distant relationship with the husband of the deceased, so far ass the accused Dhobin Devi is concerned, they inmy opinion should not be awaarded any sentence higher that the minimum permissible under the law which is 7 years. Keeping in view the heinous nature of the crime, none of the accused persons deserve the benefit of the provisions of the Probation of Offenders Act, 1960. Hence, it is
O_R_D_E_R_E_D
that the accused persons who were found guilty for the offences u/Secs.498A/304B IPC, on 30.11.97 are directed to suffer the following sentences: The accused Shambhu Keshri is sentenced to suffer rigorous imprisonment for life for the offence u/Sec.304B IPC. The accused Bhagaban Das and the accused Gouri Keshri are sentenced to suffer rigorous imprisonment for 10 years each for the offence u/Sec.304B IPC. The remaining three accused persons namely Smt. Dhobin Devi, Bejoy Keshri and Smt. Geeta Keshsri are sentenced to suffer rigorous imprisonment for 7 years each for the offence u/Sec.304B IPC being the minimum punishment prescribed by law. The period in detention in judicial custody of the accused persons, if any, shall be set off from the period of sentences imposed against each one of them, except accused Shambhu Keshri.
Since the Offence u/Sec.498A I.P.C. is a minor offence of Sec.304B I.P.C., I am not inclined to pass any sentence separately for the aforesaid offence against anyone of the 6 accused persons. The seized alamats, if any, shall be destroyed after expiry of the period of appeal. Let a certified copy of of this judgement be given free of costs to the accused persons at once. Request Copying Department accordingly. Let a copy of this Judgement be also sent to the District Magistrate, Burdwan u/Sec.365 of the Cr.P.C.
( Harjinder Singh )
Additional Sessions Judge,
Fast Track Court, 1st Court.
A S A N S O L
NOTE:- HON'BLE CALCUTTA HIGH COURT IN C.R.A. No,255 OF2002 IN THEIR JUDGEMENT DELIVERED ON 23.08.06 CONFIRMED THE CONVICTION OF ACCUSED SHAMBHU KESRI U/SEC.498A/304B IPC BUT ACQUITTED THE OTHER ACCUSED PERSONS. AN IMPORTANT OBSERVATION OF HON'BLE CAL H.C. IS REPRODUCED BELOW:-
Present:- The Hon'ble Justice Pravendu Narayan Sinha and
The Hon'ble Justice Partha Sakha Datta.
C.R.A. No.255 of 2002
Sambhu Keshri & others.
Versus
State of West Bengal.
Heard on 19.07.2006
Judgement on: 23.8.06
P.S. DATTA, J
“...................................................................In Modi's Medical Jurisprudence ante mortem and post-mortem burns have been distinguished in this that in the former there would be evidence of vital reaction meaning lie of redness, vesication and repartive process. P.W.7 holding post-mortem did not say that she found any of the three ingredients in the body. Modi has held that burns caused after death would exhibit no vital reactions. Dr. R.K. Jhala and K. Kumar in their treatiese on Dr. R.M. Jhala and V.B. Raju's Medical jurisprudence, 6th edition at page 435 have made the following observation which is most pertinent in our case. The learned authors say:
“ while inferring from the situation of the burns, in view of the significance of situation of the burns in case of homicidal burns, areas of skin unaffected also offer valuable assistance. These often indicate possibility of obstruction (trying to prevent resistance or occluding or covering the face to prevent crying for help). *******. The areas exempted from burns are called exemption areas. Similar areas like soles being entirely free from burns, with extensive burns elsewhere, raises a strong presemption of suicide. This is understandable as a person usually ignites herself or himself while in a standing posture. The soles in such cases, being in contact with the ground are exempted from the effects of flames and hence no burns are found. Such was the case in a case of suicide seen by the author. In this case, the palm and soles were exempt of burns.”
In our case, soles are totally burnt along with front portion of the scalp which negates theory of suicide.”
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