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2018 DIGILAW 91 (CAL)

Bablu @ Sirshendu Bera v. State of West Bengal

2018-01-11

JOYMALYA BAGCHI, RAJARSHI BHARADWAJ

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JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 25.08.2008 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Contai, Purba Medinapore convicting the appellants for commission of offence punishable under sections 498A/304B/34 of the Indian Penal Code and sentencing them to suffer simple imprisonment for eight years for the offence punishable under sections 304B/34 of the Indian Penal Code, no separate sentence was imposed for commission of offence punishable under section 498A of the Indian Penal Code. 2. At the outset we are informed that the appellant no. 2, namely Kanailal Bera had expired in the correctional home. Hence the appeal at the behest of appellant no. 2 has abated. 3. The prosecution case, as alleged, against the appellants is to the effect that the victim Mamoni Giri (Bera) was married to Bablu @ Shirendu Bera, the appellant no. 1 herein, according to Hindu rites and customs. At the time of marriage, a sum of Rs. 20,000/- was given as dowry along with golden ornaments, household articles etc. After the marriage Mamoni was subjected to mental and physical torture by her husband and parents in law over flimsy grounds. The appellants demanded an additional dowry of Rs. 10,000/-. Due to financial incapability, her father could not pay the said amount and the appellants incited Mamoni to commit suicide. She was subjected to mental pressure and unable to bear such torture she ended her life on 20.02.2005, barely eight months after her marriage. 4. Over the issue P.W. No. 1, Nemai Charan Giri, father of the victim, submitted a petition before the Magistrate under section 156(3) Cr.P.C. and pursuant to direction of the Magistrate Egra P.S. Case No. 102 of 2005 dated 12.07.2005 under sections 498A/304B/34 of the Indian Penal Code was registered for investigation against the appellants. 5. In conclusion of investigation, charge sheet was filed against the appellants under section 498A/304B/34 of the Indian Penal Code and the case was committed to the court of sessions and transferred to the Court of the learned Additional Sessions Judge, Fast Track, 2nd Court, Contai, Purba Medinapore for trial and disposal. Charges were framed under sections 498A/304B/34 of the Indian Penal Code against the appellants. 6. The appellants pleaded not guilty and claimed to be tried. 7. Prosecution examined 18 witnesses and exhibited a number of documents. Charges were framed under sections 498A/304B/34 of the Indian Penal Code against the appellants. 6. The appellants pleaded not guilty and claimed to be tried. 7. Prosecution examined 18 witnesses and exhibited a number of documents. The defence of the appellants is one of innocence and false implication. 8. In conclusion of trial, the trial judge by judgment and order dated 25.08.2008 convicted and sentenced the appellants, as aforesaid. 9. Mr. Siladitya Sanyal, learned Senior Counsel with Mr. Arindam Jana, learned advocate argued that the allegations of demand of dowry was belatedly raised in the FIR and is absent in the general Diary lodged by the mother of the victim, P.W. 2. There is also no reference to demand of dowry in the inquest report which was contemporarily prepared after the death of the victim. It is also submitted that the evidence with regard to the demand of dowry is inconsistent with one another. It is argued that there is no evidence that ‘soon before’ the death of the victim she had been subjected to torture for or in connection with any demand of dowry. Accordingly, he prayed for acquittal of the appellants. 10. Learned Public Prosecutor argued that the evidence of the prosecution witnesses consistently deposed that due to non-fulfillment of demands for additional dowry the victim was subjected to torture and ill treatment. The victim committed suicide at her matrimonial home within eight months of her marriage and there is a clear live link between the cruelty upon the victim over demands of dowry and her unnatural death at the matrimonial home. Accordingly, the appeal is liable to be dismissed. 11. Let me examine the rival versions in the light of the evidence on record. 12. PW 1 is the father of the victim. He deposed that the victim Mamoni was married to Bablu on 19th Jaistha 1411 B.S. At the time of marriage Rs. 20,000/- in cash, gold ornaments, utensils, beddings and other articles were given as dowry. Initially, everything was fine at her matrimonial home. On 3rd Bhadra, 1411 BS Mamoni came to her house and informed him that her husband and parents-in-law subjected her to physical torture and did not provide her food and clothing because of poor quality of dowry articles. They demanded additional dowry of Rs.10,000/-. The accused persons instigated his daughter to commit suicide. On 3rd Bhadra, 1411 BS Mamoni came to her house and informed him that her husband and parents-in-law subjected her to physical torture and did not provide her food and clothing because of poor quality of dowry articles. They demanded additional dowry of Rs.10,000/-. The accused persons instigated his daughter to commit suicide. He intimated this fact to his younger brother and others. He went to the matrimonial home of his daughter for amicable settlement. He left her daughter at the matrimonial home on 6th Bhadra, 1411 BS. Again on 6th Aghrahan, 1411 BS his daughter came to his house and complained of torture. He talked with his relations over the incident. He however did not inform the matter to the police station or Panchayat officials as he apprehended such step would affect the reputation of his daughter. His daughter informed him that her husband and father in law throttled her. He again went to the matrimonial home along with his daughter on 13th Bhadra of that year and after some discussion left her daughter at the matrimonial home. After seven days he went to Hyderabad for his work. While he was at Hyderabad, on 8th Falgoon 1411 BS he received information over telephone that his daughter had consumed poison. He could not return immediately from Hyderabad due to his work commitments. On the 4th day after he received such information he boarded the train for Kolkata and reached his house on the 5th day of her daughter’s death. After discussing with his wife and brothers he went to the house of the accused persons and found their house under lock and key. He went to Egra Police Station to lodge complaint. The police officer did not receive the written complaint on flimsy grounds. On subsequent days he again went to Egra Police Station but was turned away by the police officer. Police told him to settle the matter amicably. Thereafter, he went to Contai Court and lodged a petition before the Magistrate under Section 156(3) CrPC. He identified the complaint. After lodging the first information report the police interrogated him. On the very night of the death of her daughter his wife had lodged a general diary. In cross-examination, he stated that he went to Hyderabad on 20/21 Agrawan 1411 BS to work under Manoj Company. He did decoration work there. 13. He identified the complaint. After lodging the first information report the police interrogated him. On the very night of the death of her daughter his wife had lodged a general diary. In cross-examination, he stated that he went to Hyderabad on 20/21 Agrawan 1411 BS to work under Manoj Company. He did decoration work there. 13. PW 2 is the mother of the victim. She deposed that the victim was married to Bablu Bera on 19th Jaistha 1411 BS. After marriage the victim started residing at her matrimonial home and lived peacefully till 6th Ashar when the couple came for pherat jamai ceremony at their house. At that time the couple stayed for 6/7 days. Thereafter, her daughter went back to her matrimonial home. On 3rd Bhadra her daughter came to her house crying. She complained that the appellants had assaulted her. They paid Rs.20,000/- in cash with gold ornaments at the time of marriage as dowry. The appellants demanded additional Rs.10,000/- in cash. They could not meet their demand. Their daughter told them that the appellants were not happy with the quality of the gifts given at the time of marriage. On 6th Bhadra her husband and others went to the matrimonial home of their daughter Mamoni and left Mamoni at that house. Subsequently torture upon Mamoni continued unabated. On 6th Agrawan her daughter again came to their house and informed that the appellants had demanded Rs.10,000/- in cash as additional dowry and did not give her adequate food and clothing. Over non-payment of dowry the appellants always instigated her to commit suicide by consuming poison. Her husband and neighbours went to the matrimonial home of their daughter on 13th Agrawan and left her at the matrimonial home. Thereafter her husband went to Hyderabad. On 6th Falgoon 1411 BS her daughter committed suicide by consuming poison. Gorachand Bera informed her about the incident. She informed the incident to the police in writing (Exbt.3). She was examined by the investigating officer. She stated the reasons for her daughter’s death. She informed her husband over phone about the incident. Her husband returned home after four days. 14. PW 3 is a co-villager of PW 1. He deposed Mamoni was married to Bablu Bera. After marriage Mamoni started residing at her matrimonial home. She was examined by the investigating officer. She stated the reasons for her daughter’s death. She informed her husband over phone about the incident. Her husband returned home after four days. 14. PW 3 is a co-villager of PW 1. He deposed Mamoni was married to Bablu Bera. After marriage Mamoni started residing at her matrimonial home. Her husband and the parents-in-law demanded Rs.10,000/- in cash as additional dowry and as the amount could not be paid she was subjected to torture. Mamoni told him that the appellants were unhappy with the standard of gift given at the time of marriage. She told this to him 5 months after Ferat-Jamai ceremony. He along with father of Mamoni went to her matrimonial house and requested the accuseds to treat her well and left Mamoni at her matrimonial home. On another occasion father of Mamoni and others went to the house of the accused persons and left her there after persuading them not to perpetrate torture upon her. He was however not present on the subsequent occasion. Later Mamoni committed suicide at her matrimonial home. In crossexamination, he deposed he was an invitee of the marriage. No written document was prepared mentioning the list of gifts or money given in the marriage as dowry. 15. PW 4, 5 and 6 have been declared hostile. 16. PW 8 is a distant relation of Mamoni. He has corroborated the evidence of PW 1 and 2 with regard to demand of dowry and torture upon Mamoni over nonpayment of dowry. 17. PW 10 is an uncle of Mamoni. Her husband & in-laws tortured her over demands of dowry. He heard of the torture from Mamoni. Mamoni died within a year of her marriage. He tried to amicably settle the matter. 18. PW11 deposed that he heard about the torture upon Mamoni and that she ended her life by consuming poison at the matrimonial home from the villagers. He informed the incident to Mamoni’s father who was not in his house. 19. PW 14 is the brother of the victim. He deposed that his sister Mamoni was married to Bablu Bera. The marriage of her sister took place on 19th Jaistha, 1411 BS. The appellants used to torture his sister and as a result she committed suicide by consuming poison. The accused persons used to demand money. 19. PW 14 is the brother of the victim. He deposed that his sister Mamoni was married to Bablu Bera. The marriage of her sister took place on 19th Jaistha, 1411 BS. The appellants used to torture his sister and as a result she committed suicide by consuming poison. The accused persons used to demand money. As they were unable to pay they subjected Mamoni to torture. After the death of his sister, one Rabindra Manna (PW 11) informed them about the death. He went to the police station. He and his mother went to the police station with para people. They had lodged complaint against the accused persons. Police officer then told them that they would go to the matrimonial home on the next date. They saw the dead body of Mamoni lying at the western side of the veranda of that house. Inquest was held in their presence. He signed on the inquest report (Exbt.6/1). In cross-examination, he stated that the accused persons demanded money for purchase of land for agricultural purpose. He stated that his father had signed on the inquest report as Nimai Chandra Giri. 20. PW 15 is the scribe of the written complaint lodged by PW 2 immediately after the incident. He proved the written complaint (Exbt.3/1). 21. PW 9, S.I. of police, Egra P.S., conducted inquest over the dead body of the victim in connection with Egra P.S. Case No.12/05 dated 20.02.2005. At the time of holding inquest Subhash Giri and Ajit Kumar Manna were present. He proved the inquest report (Exbt.6). After holding inquest he prepared a dead body challan for the purpose of sending the dead body for postmortem examination. 22. PW 13 was posted as Deputy Magistrate and Collector ate of Egra Sub-Division. He conducted magisterial inquest over the dead body of the victim. He proved the inquest report. (Exbt.8). 23. PW 16 is the signatory to the inquest report (Mat Exbt.6/3). He clarified that Nimai Giri was not present at the time of holding inquest. He was at Hyderabad. 24. PW 17 is the medical officer who conducted postmortem over the dead body of the victim. On examination he found that rigor mortis had passed. The heart was full with blood. The stomach was contending some poison substance. He preserved the viscera for chemical analysis. He was at Hyderabad. 24. PW 17 is the medical officer who conducted postmortem over the dead body of the victim. On examination he found that rigor mortis had passed. The heart was full with blood. The stomach was contending some poison substance. He preserved the viscera for chemical analysis. The death in his opinion was caused due to consumption of some poisonous substance which was ante mortem and suicidal in nature.” He proved the postmortem report (Exbt.8). 25. PW 12 is a lawyer’s clerk who proved the application under Section 156(3) CrPC. (Exbt.1/1) 26. From the evidence on record it appears that Mamoni was married to the appellant no.1 Bablu Bera on 19th Jaistha 1411 BS i.e. 2nd June 2004. She committed suicide by consuming poison on 11th Falgun 1411 BS i.e. 19th February, 2005 – within eight months of her marriage. PWs.1, 2 and 14 being the parents and brother of Mamoni have categorically stated that she was subjected to torture by the appellants over the substandard quality of dowry items and on demand of an additional dowry of Rs.10,000/-. They have consistently deposed that the victim came to the parental home twice i.e. on 3rd of Bhadra 1411 BS and 6th Agrahan 1411 BS and complained that she was being subjected to mental and physical torture over a demand of Rs.10,000/-. Evidence of the said witnesses are corroborated by the other relations of the victim, namely, PWs.8 and 11 as well as PW 3, a neighbour of PW 1. Learned Senior Counsel appearing for the appellants seriously criticized such evidence as afterthought as the allegations of dowry were not reflected in the general diary (Exbt.3) lodged by PW 2, the mother of the victim soon after the incident as well as in the two inquest reports prepared by PWs.9 and 13 respectively over the dead body of the victim. It is also contended that there was inordinate delay in lodging the first information report which had not been effectively explained. Argument was also made that PW 1 was not at Hyderabad in connection with his work at the time of the incident. 27. I have considered the aforesaid submission in the factual backdrop of the instant case. The unfortunate incident occurred on 19th February, 2005 when the father of the victim PW 1 was at her work place at Hyderabad. Argument was also made that PW 1 was not at Hyderabad in connection with his work at the time of the incident. 27. I have considered the aforesaid submission in the factual backdrop of the instant case. The unfortunate incident occurred on 19th February, 2005 when the father of the victim PW 1 was at her work place at Hyderabad. Stray observation in the cross-examination of the PW 14 that he had signed the inquest report has been explained away by PW 16 who categorically stated that the father of the victim Nemai Chandra Giri (PW 1) was at Hyderabad at the time of occurrence. PW 9 has stated that Subhas Giri (PW 14) and Gunadhar Manna (PW 16) were present at the time of inquest. These pieces of evidence clearly show that PW 1 was at Hydrabad when his daughter committed suicide at her matrimonial home. PW 1 himself deposed that he was not present in the village when the incident occurred. In the absence of the patriarch of the family it was left upon the unfortunate mother of the victim who was informed of the untimely death of her daughter to the police and report the incident to the police officer. Her son (PW 14) accompanied her to the police station and it transpires from their evidence of the witnesses that the police did not accept the complaint against the accused person. On the other hand they were told to go to the residence of the matrimonial home of the victim. Lack of cooperation of the local police authorities is also evident from the evidence of PW 1 who after arriving at the village made repeated attempts to lodge criminal case against the appellants but was dissuaded by the police. In fact, the police suggested him to amicably resolve the matter. One cannot lose sight of the fact that even in the general diary (exbt.3) it has been stated that her daughter had suffered unnatural death at her matrimonial home and in the inquest reports (exbt.6 and 8) it is stated that there were disturbances in the matrimonial home of the victim. 28. It is trite law that the circumstances leading to the death of the victim need not be stated in extenso in the inquest reports. 28. It is trite law that the circumstances leading to the death of the victim need not be stated in extenso in the inquest reports. Hence, I am of the opinion that the failure to elaborately state the various incidents of torture on the victim over demands of dowry either in the general diary lodged by P.W.2 or in the inquest reports does not militate against the truthfulness of the prosecution case. 29. Delay in lodging the first information report has been adequately explained by P.W.1 who stated that he was informed by his wife about the incident and thereafter upon reaching Calcutta five days after the incident he made repeated attempts to lodge first information report at the police station. As the police officer refused to cooperate, he was constrained to institute the criminal case by way of a petition under Section 156(3) Cr.P.C. I am of the opinion that the aforesaid facts explain away the delay in registration of the criminal case against the appellants. 30. Coming to the plea that there is a snap in the live-link between the torture meted out to the victim for or in connection with dowry and her unnatural death, I find that the victim had died within eight months of her marriage. In the short matrimonial life of the unfortunate girl, on two occasions, that is on 3rd of Bhadra and 6th of Aghrayan 1411 BS, she had come to her parental home and complained of mental and physical torture perpetrated upon her by the appellants over substandard quality of dowry items and an additional demand of dowry to the tune of Rs.10,000/-. Her father (P.W.1) went to her matrimonial home and tried to settle the matter. Unfortunately, on 19.2.2005 unable to bear such torture she committed suicide at the matrimonial home. The expression “soon before” occurring in Section 304B of the Indian Penal Code does not require evidence of day-to-day torture leading to the unnatural death of the victim. It is sufficient to indicate that there is a continuous torture upon the victim over demands of dowry resulting in the unnatural death. 31. Appreciating the evidence in the aforesaid legal perspective I have no doubt in my mind that the eight months’ marriage of the victim was fraught with repeated acts of physical and mental torture over demands of dowry which ultimately culminated in her commission of suicide. 31. Appreciating the evidence in the aforesaid legal perspective I have no doubt in my mind that the eight months’ marriage of the victim was fraught with repeated acts of physical and mental torture over demands of dowry which ultimately culminated in her commission of suicide. The ingredients of the offences under Sections 498A and304B of the Indian Penal Code are, therefore, established beyond reasonable doubt in the facts of the case. 32. In the light of the aforesaid discussion, I uphold the conviction and sentence imposed upon the appellants. 33. The appeal in respect of appellant nos.1 and 3 is dismissed and that of appellant no.2 is disposed of having abated due to his death. 34. The period of detention suffered by the appellant nos.1 & 3 during investigation, enquiry or trial shall be set off against the substantive sentence imposed upon them under Section 428 of the Code of Criminal Procedure. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 35. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Rajarshi Bharadwaj, J. I agree.