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2012 DIGILAW 964 (CAL)

Panu Roy v. STATE OF WEST BENGAL

2012-10-17

KANCHAN CHAKRABORTY

body2012
Judgment :- Kanchan Chakraborty, J. The challenge in this appeal is to the judgment and order dated 30.7.2010 passed by the learned Additional Sessions Judge, 1st Court, Bankura in Sessions Trial No.4 (3) 2009 (Sessions Case No.24(1) 2009) thereby convicting the appellants Panu Roy, Kanai Roy and Smt. Arati Roy for committing offences under Sections 498A/304B/34 of the I.P.C. and sentencing them to suffer simple imprisonment for two years for the offence under Section 498A of the I.P.C. and R.I. for seven years for committing offence under Section 304B/34 of the I.P.C. with fine. On 16.5.2008 at about 17.25 hours, Ananda Roy (P.W.2) lodged one F.I.R. in Bankura Police Station alleging therein that his daughter Manju who was given marriage with the appellant Panu Roy, son of appellants Kanai Roy and Arati Roy in Baisakh 1414 B.S. upon payment of dowry, was subjected to physical and mental torture in her matrimonial house since marriage. She was pressurised to bring more money and as she failed to oblige her husband and in laws, she was physically tortured. Manju disclosed everything to her parents who, thinking of her welfare, told her to adjust with the situation. Manju could not bear torture any further and on 14.5.2008 she set herself on fire by pouring kerosene oil and died in Bankura Medical College Hospital. Ananda Roy, being informed about that incident had been to Bankura Medical College Hospital and found her daughter Manju was fighting against death. He tried to meet the Doctor and arrange for medical treatment for Manju but found that her daughter expired by that time. The F.I.R so lodged (marked Ext.1) was written by Astik Das at the instruction of Ananda Roy (P.W.2). On the basis of the said F.I.R., Bankura Police Station Case No.96 of 2008 dated 16.5.2008 was registered against the appellants under Sections 498A/304B/34 of the I.P.C. The appellants were also arrayed to face the charges under the abovementioned sections of the Indian Penal Code to which they pleaded not guilty and as a consequence the trial commenced. In course of trial, the prosecution examined 11 witnesses. The F.I.R., bed head tickets of hospital (2), inquest reports (2), rough sketch map of the place of occurrence, Post Mortem report, were admitted into evidence and marked Exts.1 to 8 on behalf of the prosecution. No witness was examined on behalf of the defence in the learned Trial Court. In course of trial, the prosecution examined 11 witnesses. The F.I.R., bed head tickets of hospital (2), inquest reports (2), rough sketch map of the place of occurrence, Post Mortem report, were admitted into evidence and marked Exts.1 to 8 on behalf of the prosecution. No witness was examined on behalf of the defence in the learned Trial Court. The learned Trial Court, upon consideration of the evidence on record, came to a finding that the prosecution brought home the charges lebelled against the appellants and accordingly, passed the judgment and order of sentenced which have been impugned in this appeal on the following grounds. No witness was examined on behalf of the defence in the learned Trial Court. The learned Trial Court, upon consideration of the evidence on record, came to a finding that the prosecution brought home the charges lebelled against the appellants and accordingly, passed the judgment and order of sentenced which have been impugned in this appeal on the following grounds. a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the learned Trial Court failed to appreciate that there was inordinate delay in lodging the F.I.R. and no explanation was provided by the prosecution for such delay; c) that the learned Trial Court failed to appreciate that there was overt act on the part of the appellants which had any nexus with the incident of death of the victim Manju; d) that the learned Court also failed to appreciate that the case of the prosecution that Manju was subjected to physical and mental torture was not at all establish; e) that the learned Trial Court erred in holding that it was a dowry death and wrongly applied the provisions of Section 113B of the Evidence Act; f) that the learned Trial Court completely ignored the important documents such as bed head tickets (Ext.3 and 3/1) and contents thereof besides the evidence of P.W.4; g) that the learned Trial Court also failed to appreciate the fact that no burnt wearing apparels, kerosene oil container or anything used for setting the victim on fire was recovered by the Investigating Officer; h) that the learned Trial Court also failed to appreciate that the P.W.5, the police official who conducted the first inquest of the dead body of the victim Manju was told by the witnesses that Manju caught fire accidentally; i) that the learned Trial Court was oblivious of the fact that the F.I.R. was lodged at the behest of the police not at the behest of the P.W.2 Ananda and that no local people was examined to support the prosecution case; j) that the judgment being otherwise bad in law, is liable to be set aside; Mr. Dipankar Dandapath, learned Counsel appearing for the appellants has contended that the judgment impugned, on the face of it, is not sustainable. Dipankar Dandapath, learned Counsel appearing for the appellants has contended that the judgment impugned, on the face of it, is not sustainable. He contended further that the learned Trial Court basing on the evidence of P.W.2 and P.W.9, i.e., father and mother of the victim Manju only and taking help of the provision of Section 113 B of the Evidence Act, came to a wrong findings being oblivious of other material factors. He contended that there was delay in lodging the F.I.R. which was not explained in any manner. Even if the P.W.2 and P.W.9, i.e., the father and mother of the victim, did not make any statements specifically when and how Manju narrated the incidents of torture to them for the last time. It is not clear also, Mr. Dandapath contended, whether the appellant Panu Roy was present in the place of occurrence on that date or not. The P.W.2 and P.W.9 had never witnessed any incident of torture on Manju. They never informed any third person that cruelty was inflicted on Manju in her matrimonial house. He contended further that elder brother of Panu married one of the close relations of P.W.2 and P.W.9 as well as the victim who had been staying in the same house but was not cited as a witness by the prosecution. Mr. Dandapath contended that she would have been the best witness in the case regarding torture on Manju and death of Manju. Mr. Dandapath further contended that the F.I.R., according to the P.W.2 was written as per his instruction by the P.W.3. The P.W.3 stated categorically that he reduced the F.I.R. in writing at the dictation of police officials in Police Station. It has been further contended that the bed head tickets, i.e., Exts.3 and 3/1 altogether supported the plea taken by the appellants in the trial that the victim caught by fire when she was arranging her clothings being unaware of the fact that there was a kerosene lamp. The P.W.4, the Doctor who examined the victim first of all also taken note of that fact stated by the victim before her death. According to the P.W.4, patient was conscious and alert when she made such statement. The learned Trial Court did not spare a single word over this issue. Mr. The P.W.4, the Doctor who examined the victim first of all also taken note of that fact stated by the victim before her death. According to the P.W.4, patient was conscious and alert when she made such statement. The learned Trial Court did not spare a single word over this issue. Mr. Debasish Roy, learned Public Prosecutor contended that the judgment impugned cannot be said to be a reasoned one on the points already raised by Mr. Dandapath. He contended that the learned Trial Court believed the statement of P.W.2 and P.W.9 sacrosanct for no reason, whatsoever. Even if the evidence of P.W.2 and P.W.9 are accepted, is not sufficient enough to establish a case under Section 498A and 304B of the I.P.C. The prosecution, according to Mr. Roy, failed to establish cruelty and dowry death by any cogent and sufficient evidence. Therefore, he fairly conceded to what Mr. Dandapath contended. In the light of the contentions made above by the learned Counsels for the parties, the impugned judgment and the evidence on record are to be considered. The genuinity of the F.I.R. and the contents thereof (Ext.1) appear to be doubtful. According to the P.W.2, Ananda Roy, F.I.R. was drafted by P.W.3 Astik Das at his dictation. The P.W.3, Astik Das, on the contrary, stated specifically that he reduced the F.I.R. in writing at the dictation of police in the Police Station. If so, the Ext.1 was not a version of P.W.2 but a version of the police officials. I have critically examined the evidence of P.W.2 and P.W.9, father and mother of the victim Manju and failed to find out anything therein which suggest that Manju was subjected to ‘cruelty’ within the meaning of Section 498A of the I.P.C. A bare statement that Manju was subjected to physical and mental torture in her matrimonial house is not sufficient. Neither the P.W.2 nor the P.W.9 had ever witnessed any such incident. They have not stated anywhere when Manju reported them about the torture on her by the appellants and in how and what manner. The P.W.2 and P.W.9 being parents of Manju neither disclosed that fact of torture on Manju to any third person even to their close relations, which appears to be unnatural and abnormal. They have not stated anywhere when Manju reported them about the torture on her by the appellants and in how and what manner. The P.W.2 and P.W.9 being parents of Manju neither disclosed that fact of torture on Manju to any third person even to their close relations, which appears to be unnatural and abnormal. The elder brother of the appellant Panu Roy, i.e., the eldest son of the other two appellants was married to the daughter of the sister P.W.2 after marriage of Manju with Panu. From the evidence of P.W.2, this fact can be gathered. From the evidence of P.W.9, it can also be gathered that the elder brother of Panu and his wife had been residing in the same house along with the appellants. That daughter of sister of P.W.2 would have been the best witness from the prosecution side to establish physical and mental torture on Manju who was none but her cousin (sister) and reason of death of Manju also. Withholding her evidence, no doubt, has a great impact on the prosecution case. I have stated already that the P.W.2 and P.W.9 have never witnessed any incident of cruelty on Manju in her matrimonial house. They never disclosed this fact to any third person. The cousin of Manju who was wife of elder brother of the husband victim Manju had been residing in that house also at that relevant time but was not examined by the prosecution. There is nothing on record that the Investigating Officer also interrogated her in course of investigation. In such a fact situation, it can hardly be said that the ‘cruelty’ within the definition of Section 498A of the I.P.C. alleged to have been proved by the prosecution. The word ‘cruelty’ is defined in the explanation appended to Section 498A. Section 498A of the I.P.C. with explanation reads thus; “498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 498A of the I.P.C. with explanation reads thus; “498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, “cruelty” means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” So, clause (a) of explanation (ii) of Section 498A of the I.P.C. postulates that any wilful conduct which is such a nature as is likely to drive a woman to commit suicide would constitute “cruelty’. Such wilful conduct, limb or health (whether mental or physical) of the woman would also amount to ‘cruelty’. Clause (b) of the explanation provides that harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would also constitute ‘cruelty’ for the purpose of Section 498A of the I.P.C. It is therefore, implicit that every harassment does not amount to ‘cruelty’ within the meaning of Section 498A. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet and unlawful demand. In other words, for the purpose of Section 498A of the I.P.C., harassment simplicitor is not ‘cruelty’ and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to ‘cruelty’ punishable under Section 498A of the I.P.C. In this regard the decision of the Hon’ble Apex Court in State of Andhra Pradesh Vs. that it amounts to ‘cruelty’ punishable under Section 498A of the I.P.C. In this regard the decision of the Hon’ble Apex Court in State of Andhra Pradesh Vs. Md. Madhusudan Rao, reported in (2008) 15 SCC 582 can well be referred to. In the instant case, although it was a case of the prosecution that there was a demand of money from the appellants’ side and Manju was pressurised for that, that fact was not at all established by sufficient and satisfactory evidence. Rather, evidence of vital witness was withheld by the prosecution. No local people has come forward to support the prosecution case. The P.W.1, a man having house in the area where P.W.2 resided, did not support the prosecution case at all. He was declared hostile by the prosecution and cross-examined under Section 154 of the Evidence Act but nothing in favour of the prosecution could be fetched out of him. The learned Trial Court, as it appears, did not take notice of the fact that there was inordinate delay in lodging the F.I.R. The incident had taken place on 14.5.2008. The victim died at about 11.45 P.M. The F.I.R. was lodged on 16.5.2008 at 17.25 hours. No explanation, whatsoever, has been given by the prosecution as to such delay in lodging the F.I.R. This apart, it is already found that the F.I.R. was lodged at the behest of the police officials in view of the statement of the P.W.3, i.e., the scribe of the F.I.R. This delay in lodging the F.I.R. appears to be very important inasmuch as the P.W.2 and P.W.9 neither witnessed any such incident of cruelty on Manju at any point of time nor had disclosed on fact to any third person during this long period of one year. Again, the daughter of his sister who was married to the elder brother of the appellant Panu was residing in that house where Manju was residing. She did not come forward to support the prosecution case. She was not cited as witness, not interrogated by the I.O. and not examined as a prosecution witness. This appears to be very important. Two inquest reports are found available on record. No.1 inquest report was conducted by A.S.I., Dilip Kr. Jana. He conducted the inquest on the basis of U.D.Case No.246 dated 15.5.2008 in presence of witnesses including the P.W.2. This appears to be very important. Two inquest reports are found available on record. No.1 inquest report was conducted by A.S.I., Dilip Kr. Jana. He conducted the inquest on the basis of U.D.Case No.246 dated 15.5.2008 in presence of witnesses including the P.W.2. He stated that at the time of holding inquest, the witnesses, i.e., P.W.2 and another one told him that when Manju was keeping cloth, then she was set on fire through one ‘Lampha’. He identified Ext.2 prepared by him and stated that the statement of the witnesses was recorded by him in the inquest report. It is fact, the Ext.2 indicates clearly that the P.W.5 mentioned that fact in his report specifically. In the instant case, it was the plea of the defence that Manju caught fire by a kerosene lamp when she was arranging her clothings. She was alive when examined by P.W.4, Dr. Manju Banerjee. The P.W.4 stated that the bed head tickets (Ext.3 and 3/1) were prepared by her and that patient Manju told her that accidentally she was burnt by a ‘Lampha’. She stated categorically in her cross-examination that she had taken note of the fact in the bed head tickets and also taken note of the fact that the patient was alert and conscious. I find that the learned Trial Court did not spare a single word over this statement of P.W.4 and the Ext.3 and 3/1. The learned Trial Court also did not consider the statement of P.W.5, at all when one of the signatories of Ext.2 was the P.W.2 himself. The Ext.5, another inquest report which was prepared by P.W.6, Angshuman Bhattacharyya, Executive Magistrate on the same date was, astonishingly, signed by P.W.2 together with the appellant Panu Roy, Dilip Kumar Jana, i.e. PW.5 and one Krishna Singh, a nurse on duty. Ananda Roy had the opportunity to inform the Magistrate at that time that his daughter was a victim of dowry death. There was no reason for the P.W.2 to remain silent even after the death of his daughter Manju on the next date, i.e., on 15.5.2008 when an independent man like Angsuman Bhattacharyya appeared in the scene to conduct inquest. This appears to be unnatural and abnormal. There was no reason for the P.W.2 to remain silent even after the death of his daughter Manju on the next date, i.e., on 15.5.2008 when an independent man like Angsuman Bhattacharyya appeared in the scene to conduct inquest. This appears to be unnatural and abnormal. Simply because the marriage of the victim had taken place about one year prior to her unnatural death, there was no reason for a Court to jump into a conclusion that it was a dowry death. A Court of Law is to act according to the evidence on record, facts situation of the case and conduct of the stakeholders of the case. In order to apply the provision of Section 113B of the Evidence Act, Court must find first of all that there exists a strong prima facie case of dowry death. The presumption can be taken as an aid by invoking the provision of Section 113 B of the Evidence Act. Simply on presumption, when there exists no prima facie case, no conviction can be said to be sustained under Section 304B of the I.P.C. specially where the prosecution failed to establish that there was a strong case of cruelty within the meaning of Section 498A of the I.P.C. I find substance in the contention of Mr. Roy, learned Pubic Prosecutor. The learned Trial Court, no doubt, failed to appreciate the facts situation of the case, evidence on record as well as conduct of the stakeholders of the particular case in a proper manner. The learned Court did not at all consider material factors but simply taken an aid from Section 113B of the Evidence Act, jumped into a conclusion and recorded conviction and sentence of the appellants which in my estimate, entirely perverse and should be set aside. In view of the discussions above, I allow the appeal. The judgment impugned is set aside. The appellants be set at liberty at once and be discharged from the bail bond.