Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 129 (CAL)

ARUN GHOSH v. STATE OF WEST BENGAL

2019-01-28

RAJARSHI BHARADWAJ

body2019
JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment and order dated 18th June, 2012 passed by the learned Additional Sessions Judge, 3rd Court, Bankura in Session Case no. 06(06)/2004 and Sessions Trial no. 01(12)/2004 convicting the appellant under Section 498A and 306 altered from charge under Section 304B of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-; in default to suffer simple imprisonment for three months for the offence punishable under Section 498A of the Indian Penal Code and also sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for six months for the offence punishable under Section 306 altered from charge under Section 304B of the Indian Penal Code and both the sentences were directed to run concurrently. 2. The prosecution case in brief is that on 14th November, 2001 one Astik Mondal, son of L. Budhan Modal of village Banjora, P.S. Mejhia came to the Officer-in-Charge of G. Ghati P.S. and lodged a written complaint alleging that his sister Belarani Ghosh was given marriage with Arun Ghosh of Pabradihi village on 18th Falgoon, 1405 B.S. according to Hindu rites and customs. After some days of her marriage she was physically and mentally tortured by her husband, father-in-law and mother-in-law and for that she occasionally came to his house being unable to bear such torture. The de facto complainant persuaded her and sent her to her father-in-law's house. On 13th November, 2001 at about 4 p.m. two persons namely, Bhajahari Mondal and Uttam Mondal of village Papradihi reported to him in their house that his sister was physically tortured by her husband in their presence and she had died. They saw Arun Ghosh to assault his sister while returning from the paddy field. On getting this information he and his para people visited to the house of the accused at night on that day and found his sister lying dead in the cowshed of the premises of the accused. On that night he came to the police station from the house of the accused and on the next morning he lodged a written complaint at G. Ghati P.S. 3. On the basis of the written complaint, a criminal case, being G. Ghati P.S. Case no. On that night he came to the police station from the house of the accused and on the next morning he lodged a written complaint at G. Ghati P.S. 3. On the basis of the written complaint, a criminal case, being G. Ghati P.S. Case no. 72/2001 dated 14th November, 2001 was initiated against the accused. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 498A/304B/34 of the Indian Penal Code against the accused person, who pleaded not guilty and claimed to be tried. 4. Mr. Milan Mukherjee, learned senior advocate for the appellant submitted that the First Information Report was lodged after 36 hours and there was no explanation for that delay. Though the complainant was present at the police station on the previous night on three occasions, he did not deem it necessary to lodge complaint before the Officer-in-Charge of G. Ghati P.S. Furthermore, the place of holding inquest report was belied by the evidence of P.W.1 and the U.D. report. He further submitted that the time of death of the victim could not be supported by medical evidence inasmuch as there was contradiction of the evidence between P.W.2 and P.W.3 regarding time of death of the victim. He also submitted that the story of dowry was disbelieved and therefore, the appellant may be acquitted of the charge under Section 306 of the Indian Penal Code. Moreover, Section 498A of the Indian Penal Code would not be applicable, as the ingredients of the explanation were found absent. He further submitted that the learned Trial Court had converted the offence under Section 306 of the Indian Penal Code, but no opportunity was given to the appellant as required under Section 216(2) of the Code of Criminal Procedure. Thus, the learned Trial Court failed to consider that the ingredients under Section 304B and 306 of the Indian Penal Code are quite different and distinct and as such in absence of direct evidence alternative charge under Section 306 of the Indian Penal Code did not arise at all. He also submitted that the evidence of P.W.2 and P.W.3 with regard to torture and severe assault on the victim immediately prior to her suicide was completely unreliable and was not supported by the medical evidence. He also submitted that the evidence of P.W.2 and P.W.3 with regard to torture and severe assault on the victim immediately prior to her suicide was completely unreliable and was not supported by the medical evidence. In support of his submission, he has relied on the decision of the Apex Court in the case of Gurcharan Singh vs- State of Punjab reported in, (2017) 1 SCC 433 and the case of M. Mohan vs- State reported in, (2011) 3 SCC 626 . He also relied on the decision of the Supreme Court in the case of Ramesh Kumar vs- State of Chhattisgarh reported in, (2001) 9 SCC 618 . According to the appellant, as there is no evidence of dowry death, the evidence of abetment to suicide could not be imposed upon the appellant without following the procedure of 216(2) of the Code of Criminal Procedure. Therefore, the prosecution has measurably failed to prove the case beyond reasonable doubt. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Judge. 5. Learned advocate for the State submitted that death of the victim occurred within three years of her marriage as evident from the First Information Report and as such the learned Judge ought to have recorded the order of conviction under Section 304B of the Indian Penal Code. Though the Investigating Officer initiated the proceeding under Section 498A/304B of the Indian Penal Code and charge sheet was submitted under the aforesaid sections, but subsequently charge was framed under Section 498A/306 of the Indian Penal Code. He submitted that the evidence as to the torture upon the victim by the appellant has been proved by the prosecution witnesses. The specific evidence of P.W.2 and P.W.3 is that the accused person caused her death after torturing and assaulting her. He also submitted that in view of the statutory presumption under Section 113A of the Evidence Act, the conviction of the appellants under Section 306 of the Indian Penal Code does not call for interference. He has cited a decision of the Hon'ble Supreme Court in the case of Brahm Swaroop & Anr. vs- State of U.P. reported in, (2011) 2 SCC(Cri) 923 and Rajeev Kumar vs- State of Haryana reported in, (2013) 16 SCC 640. Thus, he prayed for dismissal of the appeal. 6. He has cited a decision of the Hon'ble Supreme Court in the case of Brahm Swaroop & Anr. vs- State of U.P. reported in, (2011) 2 SCC(Cri) 923 and Rajeev Kumar vs- State of Haryana reported in, (2013) 16 SCC 640. Thus, he prayed for dismissal of the appeal. 6. Heard learned advocates for the parties and perused the impugned judgement. 7. In the instant case the prosecution examined as many as thirteen witnesses to substantiate the charge. 8. P.W.1, Astick Mondal, the complainant in this case stated in his evidence that his sister Belarani Ghosh was married to accused Arun Ghosh of the village Papradihi within G. Ghati P.S. about three years ago from her death as per social customs. It was an arranged marriage. At the time of marriage, a sum of Rs. 40,000/- in cash, gold ornaments and other dowries were given. After marriage his sister lived in her matrimonial home with her father-in-law, mother-in-law and husband. His sister reported to them that she was tortured by her husband, father-in-law and mother-in-law whenever she used to visit their house and they persuaded her and sent her back to her matrimonial home. On 13th November, 2001 at about 4 p.m., two persons namely, Bhajahari Mondal and Uttam Mondal of village Papradihi reported to them in their house that his sister was physically tortured by her husband in their presence and she had died. They saw Arun Ghosh to assault his sister while running from the paddy field. On getting this information P.W.1 and his para people visited the house of the accused persons at night on that day and found his sister lying dead in the cowshed of the premises of the accused. It came to his mind that his sister was murdered. On that night he went to the police station from the house of the accused and on the next day morning he lodged a written complaint with G. Ghati P.S. He proved written complaint marked as Ext.1. He further stated that his sister was tortured by the accused persons for demand of more money and she did not perform work properly in the field. P.W.1 identified the accused in dock. 9. P.W.2, Uttam Mondal , resident of village Papradihi deposed that he knew Bela Ghosh, wife of Arun Ghosh. Bela lived in her matrimonial home with her husband, father-in-law and mother-inlaw. P.W.1 identified the accused in dock. 9. P.W.2, Uttam Mondal , resident of village Papradihi deposed that he knew Bela Ghosh, wife of Arun Ghosh. Bela lived in her matrimonial home with her husband, father-in-law and mother-inlaw. According to him, the victim was tortured by her husband. He saw accused Arun Ghosh to assault his wife. About three years ago at about 10.00 a.m. accused Arun Ghosh was bringing his wife from the field by assaulting her and after an hour they saw that Bela had died. P.W.2 stated that he was in the field when Arun was assaulting his wife. He visited the house of the accused ad found Bela lying dead in the cowshed of the premises of the accused. At that time Arun, his father and mother Bijala were present in their house. Arun left his house. P.W.2 identified the accused in dock. 10. P.W.3, Bhajan Mondal, co-villager of the accused of village Papradihi corroborating the evidence of P.W.2 stated that Belarani was tortured by her husband and mother-in-law and they used to pick up quarrel with her and did not provide her food properly. Bela had died about three years ago at 1/1.30 p.m. On the date of incident in the morning Bela went to the field along with her husband, father-in-law and mother-in-law to harvest paddy. Arun was taking her in their house and was assaulting her by a stick. After sometime the mother-in-law of Bela disclosed to them that Bela had died. Thereafter, he visited the house of the accused and saw Bela lying dead in the cowshed of their house. Bela had a male child at that time. He and Uttam visited to the father's house of Bela to inform about the incident. The father-in-law, mother-in-law and husband were present in Court and he identified them in dock. 11. P.W.4, Golok Ghosh stated in his evidence that he knew Bela who was married to accused Arun. After marriage when Bela visited her father's house, she disclosed to him that she was tortured by her husband, father-in-law and mother-in-law. She also disclosed to him that her husband used to assault her and abused by her mother-inlaw. Bela had died. She was murdered. On getting information he along with the brothers of Bela and other villagers visited the house of the accused and found Bela lying dead in the cowshed of their house. She also disclosed to him that her husband used to assault her and abused by her mother-inlaw. Bela had died. She was murdered. On getting information he along with the brothers of Bela and other villagers visited the house of the accused and found Bela lying dead in the cowshed of their house. He came to know from the villagers that on that day in the morning Bela went to field with her husband and her husband assaulted her and brought her to his house and after some time it came to the notice of the villagers that Bela had died. He identified the accused in dock. 12. P.W.5, Shib Sadhan Banerjee, Sub-Inspector of Police deposed that on 13th November, 2001 the then Officer-in-Charge endorsed him to enquire U.D. Case no. 13 of 2001 and before going to the P.O. he gave requisition to BDO of G. Ghati P.S. for holding inquest on the dead body of Bela. He went to the village Papradihi in the house of Gour Ghosh and he held inquest on the dead body of Bela Ghosh in presence of BDO and prepared a report, which was marked as Ext.2. 13. P.W.6, Marubala Mondal, mother of the deceased stated in her evidence that her daughter was married to accused Arun Ghosh of village Papradihi about six years ago in the month of Falgoon. After marriage her daughter lived in her matrimonial home. She was tortured physically by her husband in her presence and her father-inlaw and mother-in-law abused her daughter. Her daughter used to visit their house from her father-in-law's house and she reported to them about torture inflicted on her by them. P.W. 6 further stated that there was due of Rs. 5,000/- in cash at the time of marriage and as their demand was not fulfilled, she was tortured by them. 14. P.W.7, Tarapada Patar stated in his evidence that Bela was his sister's daughter. On getting the information of death of Bela he visited the house of the accused and found the dead body of Bela. At the time of holding inquest of the dead body of Bela he reported to the police about the incident. He further stated that he wrote the complaint as per instruction of his nephew Astick Mondal. 15. On getting the information of death of Bela he visited the house of the accused and found the dead body of Bela. At the time of holding inquest of the dead body of Bela he reported to the police about the incident. He further stated that he wrote the complaint as per instruction of his nephew Astick Mondal. 15. P.W.8, Sisir Maji, Constable of G. Ghati P.S. deposed that he took the dead body of Bela to the morgue under dead body challan for autopsy and identified the dead body to the autopsy surgeon. He handed over the wearing apparels of the deceased to the Investigating Officer, which was seized under a seizure list marked as Ext.4. 16. P.W.9, Santa Ghosh, a resident of village Papradihi stated in her evidence that Bela had died but she could not know how she died. P.W.9 was declared hostile by the prosecution. 17. P.W.10, Ashok Kumar Saha, Constable of G. Ghati P.S. stated in his evidence that the then Constable Sisir Maji worked with him. He brought wearing apparels of Bela and handed over the same to Biswajit Saha, Sub-Inspector of Police in his presence. 18. P.W.11, Rabideb Mondal stated in his evidence that the marriage of Bela was solemnised with Arun Ghosh of Papradihi. After marriage Bela used to reside at her matrimonial home. The husband and other inmates of her in-law's house inflicted torture upon Bela on demand of money. He heard the above torture from the brother of Bela who told about the incident to him. He went to the Police Station when the dead body of Bela was brought there. 19. P.W.12, Dr. Dipankar Guha Roy deposed that he held post mortem examination on the dead body of Bela and the dead body was identified by Constable Sisir Maji. On examination he found characteristic ligature mark round the neck and considering the other findings of the dead body, he opined that death was due to the effect of hanging as noted in the post mortem report ante mortem and suicidal in nature. 20. On examination he found characteristic ligature mark round the neck and considering the other findings of the dead body, he opined that death was due to the effect of hanging as noted in the post mortem report ante mortem and suicidal in nature. 20. P.W.13, Biswajit Saha, Investigating Officer stated in his evidence that during investigation he visited the place of occurrence, prepared sketch map with index, recorded statement of the witnesses under Section 161 of the Code of Criminal Procedure, arrested accused Arun Ghosh, collected inquest report held by BDO, G. Ghati and collected post mortem report and on 11th February, 2002 he handed over the case to S.I. Asis Kumar Nandi for further investigation. Thereafter, Asis Kumar Nandi submitted charge sheet against the accused under Sections 498A/304B/34 of the Indian Penal Code. 21. On perusal of the evidence on record it appears that it was the specific case of the prosecution that cruelty and harassment was made by the accused person/appellant upon the victim Bela, for which Bela hanged herself to death on 13th November, 2001 in her inlaw's house within three years from the date of her marriage. As discussed above, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 stated that the victim complained of torture by the appellant whenever she visited her house. In the instant case, the statement made by P.W.2 and P.W.3, who were the eye witnesses, goes to show that soon before her death the deceased was subjected to cruelty or harassment by the accused in connection with demand of dowry. Nature of injury on the deceased had been proved by medical evidence. Dr. Dipankar Guha Roy categorically opined that the death was due to the effect of hanging as noted in the post mortem report ante mortem and suicidal in nature. 22. It is a fact that the victim committed suicide within seven years of her marriage. Section 113A of the Indian Evidence Act, 1872 reads as follows: "113A. Dr. Dipankar Guha Roy categorically opined that the death was due to the effect of hanging as noted in the post mortem report ante mortem and suicidal in nature. 22. It is a fact that the victim committed suicide within seven years of her marriage. Section 113A of the Indian Evidence Act, 1872 reads as follows: "113A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code." 23. The said provision provides that Court may draw in the light of attending circumstances a statutory presumption of abetment of suicide in the event a housewife commits suicide within seven years of marriage provided she was subjected to cruelty by her husband and other in-laws. The cause of torture of the victim was for demanding dowry. In the instant case, cruelty and harassment upon the victim in her in-law's house have been well proved by the prosecution and accordingly, the accused person was convicted for the offence punishable under Sections 498A/306 of the Indian Penal Code. 24. In Gurcharan Singh vs- State of Punjab (supra) and in M. Mohan vs- State (supra), the Apex Court held Section 306 of the Indian Penal Code criminalises sustained incitement for suicide. In Ramesh Kumar vs- State of Chattishgarh (supra) the Apex Court held that merely because accused is found guilty under Section 498A of the Indian Penal Code, he should not necessarily be held to be guilty under Section 306 on the basis of same evidence. But in the present case there is overwhelming evidence, the wife had been subjected to torture both physical and mental by the appellant over demand of dowry and the victim had repeatedly complained of such torture to the parents and the neighbours of her husband. 25. But in the present case there is overwhelming evidence, the wife had been subjected to torture both physical and mental by the appellant over demand of dowry and the victim had repeatedly complained of such torture to the parents and the neighbours of her husband. 25. On the other hand, in Rajeev Kumar vs- State of Haryana (supra) as relied by the prosecution, the Apex Court held that when evidence justified the conviction of the appellant under Section 498A and 306 of the Indian Penal Code instead of graver offence under Section 304B of the Indian Penal Code, it is not necessary to remit the matter to the trial Court for framing of charge under Section 306 of the Indian Penal Code and the accused also cannot complain for want of opportunity to defend the charge under Section 306 of the Indian Penal Code. 26. Hence, I uphold the order of conviction and sentence passed by the learned Judge under Sections 498A/306 of the Indian Penal Code. Since the appellant was granted bail on 19th September, 2012, bail bond of the appellant shall be cancelled and he is directed to surrender forthwith before the trial court. 27. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. 28. Accordingly, the appeal is dismissed. 29. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 30. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.