Sarkar Vs. Sachindra Nath Mondal & Ors  Insc 9 (8 January 2003)
Hegde & B.P.Singh. Santosh Hegde, J.
complainant in Sessions Case No.127 of 1989 before the Sessions Judge, West Dinajpur, at Balurghat is in appeal before us
in the above Criminal Appeal, against the judgment of acquittal made by the
High Court Calcutta in Criminal Death Reference No.4/1990 and Criminal Appeal
No.327 of 1990. The State has not preferred any appeal against the judgment of
the High Court, but is a party respondent before us.
case briefly stated is that one Suchitra, the daughter of the appellant herein
was married to Nakul Chandra son of Sarat Chandra Mandal, accused No.1 before
the Sessions Court. At the time of the marriage, there was an agreement to pay
dowry in cash of Rs. 5001/- out of which, Rs. 3001 was paid to the accused A-1
by the appellant but he could not pay the balance amount of dowry due to
poverty. A-1 was living with his wife A-4 and five of his children of which A-3
Sachindra Nath Mandal is one of them who was living with his wife Gauri Mandal,
who was A-4 before the Sessions Court.
husband of deceased Suchitra was Nakul Mandal, who was also staying with his
father. It is the prosecution case that because of the non-payment of balance
of dowry, there was constant torture and ill-treatment of the deceased by the
accused persons. This was made known to the appellant (PW-11) as also his wife
PW-1 Arati Sarkar.
16.8.1986, PW-1 had come to know that her daughter had consumed poison in the
house of accused No.1 (father in-law) and in view of the fact PW-11, husband of
PW-1 was along with PW-2 away in the field, had proceeded towards the village
of her sambandhi and on the way they met one Nakul Bhunia, who took them on his
cycle towards Durlavpur.
on the way, they found the body of deceased Suchitra being carried on Plank
tied to the same by A-3 Sachinder Mandal with the help of some people and on
seeing them A-3 and others left the body there and went to some distance. When
PW-1 and PW-2 went near the body, they found bleeding from the mouth and
nostril of the deceased, therefore they took the deceased across the river Pagliganj
to Balurghat Hospital, where PW-15 Dr. Nath examined the deceased and declared her
as brought dead. He also opined that, the death was caused by throttling. On
the basis of the information, received from the Dr. PW-15, the police of the Balurghat
Police Station registered a case under Section 302 IPC and started the
investigation. The body was sent for post-mortem examination, which was
conducted by Dr. D. Shah PW-14 on 17.8.1986. He opined that cause of death of
the deceased was due to manual strangulation and was homicidal in nature.
During the post-mortem, he noticed the bruise mark on the neck and both on
right and left side of the wind pipe. On dissection, he found the hyoid bone
fractured. After completion of the investigation, the police filed charge-sheet
against the above-mentioned four accused persons.
prosecution has primarily relied upon the evidence of PW-1, the mother, PW-2
aunt, PW-4 brother, PW-11, the father and another relative PW--2, Govind Sarkar
to establish the fact that there was a dowry demand, pursuant to which the
deceased was being tortured and on the date of incident the body of the
deceased was being carried on a plank tied to the same. The prosecution also
relied upon the medical evidence to establish the fact that there was a
homicidal death by throttling.
peculiar defence was taken by the accused persons who contended that on the
fateful day, the deceased had consumed poison and when it was noticed by her
husband, Nukul, he tried to prevent the deceased from swallowing the poison by
pressing the neck at which time A-3, brother in law of the deceased allegedly
came and put his finger into the throat of the deceased to make her vomit the
poison. The further contention was that at that point of time, deceased was
alive, therefore, they decided to take her to the hospital and it was during
that time that the mother of the deceased met on the way when the body was
being taken to the hospital. The Trial Court on consideration of the evidence
on record came to the conclusion that the prosecution by circumstantial
evidence has established the case against the accused, hence held the accused
persons guilty and awarded capital punishment to A-3, the brother in law of the
deceased, Suchindra Nath Mandal, while the other three accused persons were
convicted under Section 302 read with 34 and were awarded life imprisonment.
High Court in appeal came to the conclusion that the prosecution has failed to
establish the necessary link in the circumstantial evidence to prove that
either the accused persons shared a common intention to commit the murder of
the deceased or any particular accused had committed the murder of the
held the circumstances, like carrying the body of the deceased or medical
evidence, the opinion of the Dr. that the deceased died by throttling, by itself,
would not establish a case against the accused persons of having committed the
murder of the deceased. It also held that there was no material to come to the
conclusion that there was any common intention on the part of the accused
persons. It is on this basis, the High Court allowed the appeal setting aside
the conviction of the accused persons.
this appeal, Shri Rakesh Khanna, learned counsel appearing for the appellant
contended that chain of circumstances relied upon by the prosecution clearly
shows that there was a demand for dowry, consequent to which there was frequent
attack on the deceased by her in laws which she had often brought to the notice
of her parents. He pointed from the evidence that the prosecution has
established on the date of incident, there was a fight in the house of A-1
involving the deceased. He also pointed the fact that A-3 was carrying the body
of the deceased tied to a plank towards cremation ground which indicated the
fact that the accused persons were aware that the deceased was dead. He further
pointed out that the injury in the finger of the deceased as well as the
medical opinion clearly showed that the deceased had died due to strangulation.
He further pointed out that A-3 had some injuries on his finger which further
corroborated the prosecution case as to the murder of the deceased. The learned
counsel for the appellant supported the judgment of the High Court.
have heard the learned counsel for the parties and perused the records. From
the evidence adduced by the prosecution, it is found that the deceased was
living in a joint family along with father-in-law, mother-in-law,
brothers-in-law and sisters-in-law. The prosecution has also been able to
establish that there was some demand for dowry because of which there used to
be quarrel between the deceased and other members of the family. The
prosecution has also established that on the date of incident A-3 along with
some other persons was carrying the body of the deceased which he claimed was
being taken to the hospital for treatment. It is on this basis relying on the
oral evidence led by the prosecution the trial court found the accused guilty
while the High Court found it difficult to base a conviction on the material
produced by the prosecution.
in agreement with the finding of the High Court. It is true that the
prosecution has been able to establish motive but then that by itself is not
sufficient to base a conviction. The other circumstantial evidence that is
established beyond reasonable doubt is the fact that the deceased died of
strangulation. There is no material produced by the prosecution to show who
actually committed this crime but there being no eye-witnesses to the incident
the prosecution will have to establish all the links in the chain of
circumstances which would have to show that in all probability it is only the
accused persons who could have committed this crime. This the prosecution has
failed to establish. It is an admitted fact that apart from the accused persons
there were others also staying in the house of A-1 which included the husband
of the deceased. No case is made out by the prosecution why others including
the husband could not have been a party to this crime. In the absence of any
such material, the trial court relied on a statement made in Section 313 Cr.P.C.
by A-3 which the trial court construed as a confession. We have carefully
examined this statement of A-3 wherein he had stated that when he came to know
that the deceased had swallowed poison he went to the room where the deceased
was and found her husband Nakul pressing her neck. With a view to prevent the
poison from going down the throat at this stage, A-3 put his fingers in the
throat of the deceased to make her vomit the poison. In the said process, he
injured his fingers. This statement, if it is to be accepted in its entirety,
shows it was the husband of the deceased who pressed the throat which could
have caused the suffocation. The role of A-3 as stated in the statement does
not implicate A-3 of having been a party to any crime but the trial court
thought otherwise. In this regard, we agree with the High Court that this
statement cannot be made use of by the prosecution to prove the guilt of the
being no other material on record to establish that these accused persons are
responsible for the murder of the deceased, we think the High Court was
justified in reversing the finding of the trial court.
the reasons stated this appeal fails and the same is dismissed.