Sailen Mandal vs Ashu Mandal And Ors

Shree Chandrashekhar, J

The appellants in both the appeals namely - Sailen Mandal in Criminal Appeal (D.B.) No. 870 of 2017 and, Ashu Mandal and Bhanu Devi in Criminal Appeal (D.B.) No. 1230 of 2005 - have challenged the judgment of their conviction under section 302/34 IPC and the order of sentence of RI for life and fine of Rs.5,000/- imposed upon each appellants, both dated 27.08.2005 passed by the 1st Additional Sessions Judge, Pakur in Sessions Case No.131 of 2004.

The appellant namely, Sailen Mandal in Criminal Appeal (D.B.) No. 870 of 2017 is the husband of the victim lady. In Criminal Appeal (D.B.) No. 1230 of 2005, the appellant namely, Ashu Mandal is father-in-law and the appellant namely, Bhanu Devi is mother-in-law of the victim lady.

On the basis of the ferdbeyan of Janu Devi recorded at about 09:30 a.m. on 25.06.2004 alleging that the accused persons have killed her daughter, Littipara P.S.Case No.18 of 2004 was registered against the accused-appellants for the offences punishable under section 498A/302 IPC. After the investigation, charge-sheet was submitted against the accused persons under section 302/34 IPC and they faced trial in Sessions Case No.131 of 2004 for the aforesaid charge framed against them vide order dated 18.10.2004.

During the trial the prosecution has examined 14 witnesses; the doctor who has conducted the post-mortem examination is PW-12 and the Investigating Officer has examined himself as PW-14.

The prosecution has projected daughter of the victim namely, Kalyani Kumari as an eye-witness, who has been supported by the father and mother of the victim.

On the basis of the evidences led before him, the learned 1st Additional Sessions Judge, Pakur has held that the prosecution has proved the charge under section 302/34 IPC beyond all reasonable doubt and, accordingly, convicted these appellants for the aforesaid offence.

The informant namely, Janu Devi, mother of the deceased has deposed in the court that when she received an information at about 4:00 a.m. in the morning on 25.06.2004 that the accused persons have killed her daughter she alongwith her husband who has been examined as PW-10 went to the matrimonial house of her daughter at village-Karan Ghati where she saw the burnt dead-body of her daughter lying on a cot. She has further stated that the accused Sailen Mandal had been abusing her daughter as she could not give birth to a son and he wanted to marry her younger daughter.

During the cross-examination, however, she was unable to disclose the name of the person who had informed her about death of her daughter. Father of the deceased namely, Noren Mandal has also given evidence on the similar lines.

The star witness for the prosecution is the daughter of the victim namely, Kalyani Kumari who was aged about 7-8 years at the time of incident. She has deposed that her father assaulted her mother with a wooden log and, thereafter, the accused persons took her mother inside the room. She has asserted that she heard cries of her mother and after sometime the accused persons came out from the room and informed that her mother is sleeping now. She, however, has admitted that she has not seen anybody putting her mother on fire. The Investigating Officer has admitted that during the course of investigation he did not record the statement of Kalyani Kumari. By now it is well-settled that evidence of a witness recorded for the first time in the court cannot be the sole basis for recording conviction of an accused [refer "Adambhai Sulemanbhai Ajmeri And Others vs. State of Gujarat" (2014) 7 SCC 716].

On the above aspect of the case, that the dead-body of Maya Devi was found in her room, these witnesses are largely consistent, however, there are as many as 6 witnesses examined by the prosecution who have turned hostile; PW-2, PW-3, PW-4, PW-6, PW-7 and PW-8. The witness-Krishna Mandal who is PW-9 has been tendered for cross-examination and other two witnesses-PW-1 and PW-5 are hear-say/formal witnesses.

The Investigating Officer-PW-14 has admitted in the court that he did not visit the village-Jiktiya which is the place where the informant resides. The story of the accused-Sailen Mandal wanting to marry the younger daughter of the informant, thus, cannot be said to have been verified by the Investigating Officer. This is also to be kept in mind that no charge under section 498A IPC was framed against the accused persons and, therefore, it is not a case of the prosecution that the accused persons were torturing and harassing the deceased in connection to demand of dowry. The Investigating Officer has deposed that at the place of occurrence he found a stove and a can of kerosene oil but no sign of struggle was found at the place of occurrence. There is no evidence that the victim had struggled with the accused persons; no mark, no broken bangles etc. It is also pertinent to record that burn injuries on the dead-body of the deceased-Maya Devi has been found above her waist. It is the prosecution's own case that the accused- Sailen Mandal has assaulted the victim with a wooden log but then no external injury has been found by the doctor on the dead-body of the deceased-Maya Devi. The doctor namely, Lalit Kumar Bhagat-PW-12 has found 80% burn injuries on the dead-body of the deceased-Maya Devi.

In the above state of evidences, we are of the opinion that on the basis of evidence of Kalyani Kumari it cannot be held that the prosecution has proved the charge under section 302/34 IPC. Her evidence is contradicted by the medical evidence and not reliable.

Accordingly, we hold that the prosecution has failed to establish charge under section 302/34 IPC against the appellant namely, Sailen Mandal in Criminal Appeal (D.B.) No. 870 of 2017 and the appellants, namely, Ashu Mandal and Bhanu Devi in Criminal Appeal (D.B.) No. 1230 of 2005.

The judgment of conviction under section 302/34 IPC and the order of sentence of RI for life and fine of Rs.5,000/- imposed upon each appellants, both dated 27.08.2005 passed by the 1st Additional Sessions Judge, Pakur, in Sessions Case No.131 of 2004 are set-aside.

The appellant, namely, Sailen Mandal in Criminal Appeal (D.B.) No. 870 of 2017 and the appellants, namely, Ashu Mandal and Bhanu Devi in Criminal Appeal (D.B.) No. 1230 of 2005 are acquitted of the charge under section 302/34 IPC framed against them in Sessions Case No.131 of 2004.

The appellant, namely, Sailen Mandal in Criminal Appeal (D.B.) No. 870 of 2017 shall be released forthwith, if not wanted in connection to any other criminal case and the appellants, namely, Ashu Mandal and Bhanu Devi in Criminal Appeal (D.B.) No.1230 of 2005 are discharged of liability of the bail-bonds furnished by them.

In the result, Criminal Appeal (D.B.) No. 870 of 2017 and Criminal Appeal (D.B.) No. 1230 of 2005 are allowed.

Fee to the learned Amicus shall be paid as per the Notification dated 23.11.2017.

Let the lower court records be transmitted to the court concerned forthwith.