Joymalya Bagchi, J. - (1.) The appeal is directed against the judgement and order dated 19th/20th January, 1996 passed by the learned Additional Sessions Judge, Asansol in Sessions Trial No. 13/95 (Sessions Case No. 31/1994) convicting the appellants for commission of offence punishable under Sections 498A/304B/120B/201 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for eight years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for two years more for the offence punishable under Section 304B IPC to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- each, in default, to suffer rigorous imprisonment for three months more for the offence punishable under Section 498A IPC to suffer rigorous imprisonment for three years and to pay fine of Rs.1,500/- each, in default, to suffer rigorous imprisonment for four months more for the offence punishable under Section 201 IPC. No separate sentence was awarded to the appellants in respect of the offence punishable under Section 120B IPC; all the sentences shall run concurrently.
(2.) The prosecution case as alleged against the appellants is to the effect that on 31st May, 1989 (17th Jaistha, 1396 B.S.) the victim, Kalyani got married to the appellant no.1, Chandan Paul according to Hindu rites and customs. After marriage the victim started residing at her matrimonial home. She was subjected to mental and physical torture on the demand of a Bajaj scooter and a colour television within 2-3 days of her marriage. The victim narrated the incident when she came to her parental home. On 22nd June, 1989 father of the victim namely, Bhakti Pada Ghosh PW9) was informed that Kalyani was missing from the matrimonial home from the previous day. On receipt of such information he came to the matrimonial home of the victim and found that the dead body of Kalyani had been recovered from the river Nunia. He found that a saree was tied around the body of the victim and the body was in a highly decomposed state. He suspected that the appellants and other accused persons had killed the victim and had thrown her body into the river to cause disappearance of evidence. Thereafter they lodged a false missing diary with Nimcha Police I.C. in order to cover up their misdeeds. On the direction of the learned Magistrate before whom Ajit Kumar Manna (PW9) lodged a petition under Section 156(3) of the Code of Criminal Procedure, Raiganj Police Station Case No. 189(10)89 under Sections 302/201/120B of the Indian Penal Code was registered against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed against the appellants and other accused persons under Sections 498A/304B/201/120B IPC against the accused persons. The case being a sessions triable one was committed to the Court of Sessions and was transferred to the Court of the Additional Sessions Judge, Asansol for trial and disposal. Charges were framed under Sections 498A/304B/201/120B IPC against the accused persons. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. It was the specific defence of the appellants that the victim was a patient of epilepsy and had accidentally drowned in the river. On 21st June, 1989 the victim was suffering from fever and had gone to the river to ease herself. Thereafter, she had not returned. Missing diary was lodged with Nimcha Police I.C by Hiralal Pal (DW4) and information was also sent by him to the father of the victim (PW9). On the next day, dead body of the victim was recovered from the river. DW1 and DW3 dragged the dead body of the victim out of the river using a saree tied arount her neck and leg. Inquest was held over the dead body of the victim on the selfsame day but no complaint was lodged by PW1. Subsequently, the appellants were falsely implicated in the instant case. To probabilise the aforesaid defence accused persons examined five defence witnesses. On an analysis of the evidence on record, the trial Judge by the impugned judgement and order dated 19th/20th January, 1996 convicted and sentenced the appellants, as aforesaid. However, the other accused persons were acquitted of the charges levelled against them.
(3.) Mr. Milon Mukherjee, learned senior advocate along with Mr. Subir Ganguly, learned advocate appearing for the appellants argued that the prosecution has not been able to prove its case beyond reasonable doubt. Although it was the prosecution case that the victim had been murdered within the precincts of her matrimonial home and thereafter thrown into the river, inquest report (Exhibit-3) prepared by PW11 noted that the victim had gone to the river to ease herself on 21st June, 1989. This version in the inquest report is resonated by the defence witnesses namely, DW1 & DW 2. Investigating Officer (PW11) admitted that no complaint had been lodged against the appellants on the day inquest was held over the body of the victim. Senior counsel further argued that the evidence of autopsy surgeon (P.W13) that the victim had suffered homicidal death is not a conclusive one. Body of the victim was in decomposed state and therefore, it was impossible for the Autopsy Surgeon to definitely opine that the victim had suffered homicidal death. He further argued that the allegation of cruelty upon the victim-housewife has not been proved beyond doubt. Evidence of the mother of the victim (PW2) runs counter to that of her father (PW9) as to the time when she came to her parental home and narrated the incidents of torture. Prosecution ought to have examined Sanatan who appears to have visited the victim at her matrimonial home on 21st June, 1989. Failure to lead the best evidence relating to the circumstances leading to her death, improbabilises the prosecution case of cruelty for and/or in connection with dowry and the ingredient of offence under section 304 IPC, namely cruelty perpetrated on the victim soon before the death, a condition precedent for attracting statutory presumption under Section 113B of the Evidence Act, has not been established in this case. Hence, the appellants are entitled to an order of acquittal.;