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2019 DIGILAW 66 (CAL)

Prosenjit Biswas v. State Of West Bengal

2019-01-15

RAJARSHI BHARADWAJ

body2019
JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment and order dated 22nd December, 2009 passed by the learned Additional Sessions Judge, Fast Track Court no.3, Bongaon, North 24-Parganas in S.T. No. 02(02)/08/S.C. No. 01 (09)/07 arising out of Gaighata P.S. Case No. 247/05 dated 9th November, 2005 convicting the accused/appellant Prosenjit Biswas under Section 306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs.1,000/-; in default to suffer rigorous imprisonment for three months and also sentencing him to suffer rigorous imprisonment for two years for the offence under Section 498A of the Indian Penal Code and both the sentences under Sections 306 and 498A of the Indian Penal Code were directed to run concurrently. 2. The prosecution case in brief is that one Nityananda Saha, father of the victim lodged a written complaint alleging that his youngest daughter Supriya Biswas was married in the month of Agrahayan, 1409 B.S. with Prosenjit Biswas. At the time of marriage, he gave Rs.20,000/- cash, 5 bhari golden ornaments and furniture. After some days of her marriage, the husband, mother-in-law, father-in-law and two brothers of the husband of his daughter started to inflict physical torture and mental cruelty upon his daughter by demanding money from him. It was further alleged that he paid Rs.22,000/- in instalments, but after some days he came to know that there was illicit relationship between his son-in-law and Rina Singh. For this reason, at the instance of Rina Singh, his son-in-law Prosenjit Biswas, elder brother Pradip Biswas, another brother Sajal Biswas, father Dhananjoy Biswas and mother Shanti Rani Biswas used to inflict jointly mental and physical torture. In the last year on the occasion of ‘Kali Puja’, his daughter came to his house along with her son aged about year and she told him that the members of her in-law’s house had demanded Rs.50,000/- for the purpose of business. His daughter also stated that if the said money was not paid, her husband would not allow her to live with him and he would start his life with Rina Singh. His daughter also told him that they threatened to kill her. He managed to send back his daughter assuring her that he would pay that money within few days. His daughter also stated that if the said money was not paid, her husband would not allow her to live with him and he would start his life with Rina Singh. His daughter also told him that they threatened to kill her. He managed to send back his daughter assuring her that he would pay that money within few days. It was further alleged that on 9th November, 2005 in the morning, one neighbour informed him that his daughter had expired. On hearing the news, he rushed to the house of in-laws of his daughter and found his daughter lying on a cot as dead. He also found black spot and nails cut injury on the throat of his daughter. He also found one broken sakha in two pieces, one chitkini with some broken wood and other household articles in scattered condition. He did not find any member of his daughter’s in-law’s house. 3. On the basis of the written complaint, a criminal case, being Gaighata P.S. Case no. 247/2005 dated 9th November, 2005 was initiated. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 498A/304B/34 of the Indian Penal Code against six accused persons, who pleaded not guilty and claimed to be tried. 4. It appears from the record that the Trial Court held that the accused Prosenjit Biswas was found guilty for committing offence under Sections 306/498A of the Indian Penal Code and accordingly, he was convicted under Section 235(2) of the Code of Criminal Procedure. The other accused persons namely, Pradip Biswas, Dhananjoy Biswas, Rina Singh, Shanti Rani Biswas and Sajal Biswas were found not guilty and accordingly, they were acquitted under Section 235(1) of the Code of Criminal Procedure. They were discharged from their respective bail bonds. 5. Learned advocate for the appellant submitted that from the First Information Report as well as the evidence on record it appears that the instant case has been made out for non-fulfilment of demand of dowry, the victim committed suicide, but in this case there was no such allegation or evidence of abetment of suicide under Section 306 of the Indian Penal Code against the accused person. 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. In support of his submission he has relied on a decision of the Apex Court in the case of Harjit Singh -vs- State of Punjab reported in, AIR (2006) SC 680. 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 further submitted that in the instant case, there was strong direct evidence and other materials on record that soon before death there was dying declaration of the victim under Section 164 of the Code of Criminal Procedure and the evidence of the father of the victim that soon before death due to abetment the victim committed suicide, was not at all connected with the demand of dowry. He also submitted that the evidence of P.W.1 and P.W.2 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 and in the post mortem report there was no such remark of physical torture. The evidences of P.W.1 and P.W.2 were contradictory to each other. P.W.1 stated that he was unable to recollect from his memory, whereas he deposed that he had no knowledge about the fact of the incident. Similarly, P.W.2 gave her statement under Section 161 of the Code of Criminal Procedure, but she had not stated that fact in her deposition. The important facts, which had been stated in the deposition, were not in the First Information Report. He has relied on the decision of the Supreme Court reported in 2007 S.C. (C.L.J.) 353 to show that the allegation made against the appellant is not based on evidence but out of suspicion, which is not permissible under the law. There was no single whisper in the evidences of P.W.1 and P.W.2 about physical torture, one or two incident of torture or assault does not effect under Section 498A of the Indian Penal Code. There was no single whisper in the evidences of P.W.1 and P.W.2 about physical torture, one or two incident of torture or assault does not effect under Section 498A of the Indian Penal Code. In this connection, reliance was placed by the learned advocate for the appellant in the case of Nilakantha Pati -vs- State of Orissa reported in, (1995) Cri LJ 2472. 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. 6. Learned advocate for the State submitted that death of the victim occurred within seven years of her marriage as evident from the First Information Report. He submitted that 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 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 Supreme Court in the case of Dalbir Singh -vs- State of U.P. reported in, (2004) 5 SCC 334 . It was held in paragraphs 17 and 18 thereof that though the accused was charged under Section 302, but the evidence shows that the appellant has committed offence under Section 306 of the Indian Penal Code and he should be convicted for the same. Thus, he prayed for dismissal of the appeal. 7. Heard learned advocates for the parties and perused the impugned judgment. 8. In the instant case the prosecution examined as many as nine witnesses to prove the charge of cruelty. 9. P.W.1, Nityananda Saha, the father of the victim as well as the complainant of this case stated that his daughter named Supriya Biswas was married with Prosenjit Biswas in the month of Aghrahayan, 1409. 8. In the instant case the prosecution examined as many as nine witnesses to prove the charge of cruelty. 9. P.W.1, Nityananda Saha, the father of the victim as well as the complainant of this case stated that his daughter named Supriya Biswas was married with Prosenjit Biswas in the month of Aghrahayan, 1409. At the time of marriage, he paid Rs.20,000/- cash and presented several gold ornaments and articles as dowry. Since after the marriage his daughter stayed in her in-law’s house, she gave birth of a male child. He used to enquire about her and came to learn that his daughter was not happy. On further demand by the husband he paid Rs.22,000/-, but thereafter, his daughter came to his house and told that her husband had an illicit relationship with one Rina Singh. His daughter also told that a sum of Rs.50,000/- was to be paid to the accused, otherwise her husband would settle with Rina Singh and she would not be allowed to live with him as wife. The accused persons used to demand further dowry repeatedly and tortured his daughter to bring money and they used to drive her from her matrimonial home. After hearing demand of Rs.50,000/- from his daughter, he asked her to return to her matrimonial home assuring her for taking up the matter with the accused persons. He told the accused persons that he being a poor man could not fulfil their demand but assuring them to make part payment towards further dowry. On 9th November, 2005 in the morning he was informed that his daughter had expired. Immediately, he rushed to the house of the accused Prosenjit and found Supriya was lying in a cot as dead. He also saw that several articles lying on the floor in broken condition. He also found nail mark injury on her throat and her left hand was also in fractured condition. None of the inmates of her in-law’s house was present there. Thereafter, he lodged a written complaint at Gaighata Police Station. One Lalan Kumar Saha wrote the written complaint and he identified his handwriting and the complaint, which was marked as Ext.1/1. 10. P.W.2, Jayasree Saha, sister of the victim stated that Supriya was given marriage with Prosenjit Biswas. After the marriage she went to her in-law’s house and out of wedlock, she gave birth of a son. One Lalan Kumar Saha wrote the written complaint and he identified his handwriting and the complaint, which was marked as Ext.1/1. 10. P.W.2, Jayasree Saha, sister of the victim stated that Supriya was given marriage with Prosenjit Biswas. After the marriage she went to her in-law’s house and out of wedlock, she gave birth of a son. Sometime after marriage her sister was mentally tortured. At the time of marriage, he father paid Rs.20,000/- cash and presented gold ornaments and articles as demanded, but the accused persons were not happy. The accused persons compelled her sister to come to her father’s house for bring further dowry. She further stated that her father paid Rs.22,000/-, but in spite of that, the mother-in-law Shanti Rani Biswas, father-in-law Dhananjay Biswas, her husband Prosenjit Biswas and two elder brothers of her husband namely, Pradip Biswas and Sajal Biswas used to torture her sister on demand of further dowry. Besides that, Prosenjit Biswas had developed illicit relationship with Rina Singh, who used to visit her sister-in-law’s house and stayed there very often. Prosenjit Biswas and Rina Singh used to go outside and her sister objected to such illicit relationship. Thereupon, all relatives of her sister-in-law’s family used to assault and torture upon her. In the year 2005, before Kali Puja the accused persons sent her sister after torturing and assaulting her to their place. Her sister came weeping and disclosed to her father that the accused persons demanded a sum of Rs.50,000/- as further dowry or business purpose and if the said sum of Rs.50,000/- was not paid, the accused persons would kill her and not to allow her to live as husband and wife with Prosenjit Biswas and Prosenjit Biswas would start living with Rina Singh. Her father being a poor man was not in a position to pay the demanded sum of Rs.50,000/- at that time. Her sister had expired on 9th November, 2005. One neighbour of her sister-in-law’s house informed the fact to them. Thereafter, she went to the in-law’s house and found her sister lying as dead on a cot. Several articles were lying in scattered condition in a room. None of the inmates was found there. 11. P.W.3, Mrinmoy Roy, neighbour of the accused person was declared hostile. 12. P.W.4, Gita Golder, neighbour of the accused person was declared hostile. 13. Thereafter, she went to the in-law’s house and found her sister lying as dead on a cot. Several articles were lying in scattered condition in a room. None of the inmates was found there. 11. P.W.3, Mrinmoy Roy, neighbour of the accused person was declared hostile. 12. P.W.4, Gita Golder, neighbour of the accused person was declared hostile. 13. P.W.5, Shyamali Samajder, whose father’s house was in the village of Uttar Bakchara, was declared hostile. 14. P.W.6, Ananta Kumar Ghosh, Assistant Sub-Inspector of Police, being the Investigating Officer stated that on 9th November, 2005 he was posted at Gaighata Police Station and he received a complaint from one Nityananda Saha. He started Gaighata P.S. Case no. 247 dated 9th November, 2005. The case was endorsed to Narayan Ghosh, Sub-Inspector of Gaighata Police Station for investigation. 15. P.W.7, Dr. Sudhangshu Barman, Medical Officer deposed that on the date of incident he held post mortem examination over the dead body of one Supriya Biswas, wife of Prosenjit Biswas of village Uttar Bakchara in connection with Gaighata P.S. U.D. Case no. 66 of 2005 dated 9th November, 2005. On examination he found that the built of the body was average, rigor mortis plus, bruise marks were seen in front of throat and in the stomach violate colour poison was seen. The cause of death was due to cardio-respiratory failure in the case of poisoning. However, his opinion was co-related with clinical examination report. 16. P.W.8, Shyamal Chandra Mondal, Sub-Divisional Officer, Chandannagar, Hooghly deposed that on 11th November, 2005 held inquest over the dead body of Smt. Supriya Biswas. One Nityananda Saha, who was the father of the deceased, identified the dead body. On examination of the dead body, he found four black marks (fingerprint) over the neck of the deceased. He also noticed that the right wrist of the deceased was broken. He proved his report and marked as Ext.6. 17. P.W.9, Narayan Ghosh, Investigating Officer of this case deposed that on 9th November, 2005 he received the charge of investigation of Gaighata P.S. Case no. 247 dated 9th November, 2005. During investigation, he visited the place of occurrence, prepared a rough sketch map along with index and held inquest over the dead body of Supriya Biswas. He examined the available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. 247 dated 9th November, 2005. During investigation, he visited the place of occurrence, prepared a rough sketch map along with index and held inquest over the dead body of Supriya Biswas. He examined the available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. He seized some articles at the place of occurrence under a seizure list. He collected the post mortem report and the inquest report of the Executive Magistrate. He sent the dead body to the morgue for post mortem examination through a dead body challan. He arrested Dhananjay Biswas, Rina Biswas and subsequently, Shanti Rani Biswas. He made attempt to arrest other accused persons, but in vain. He sent the visera of the deceased. Thereafter, he submitted charge sheet against six accused persons showing accused Sajal Biswas as absconder under Sections 498A/304B/306 of the Indian Penal Code. 18. 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 Supriya, for which Supriya had to commit suicide in her in-law’s house within seven years from the date of her marriage. As discussed above, P.W.1 and P.W.2 stated that the victim complained of torture by the appellant whenever she visited her house. 19. 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.” 20. Explanation - For the purposes of this section, “cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code.” 20. 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. From the evidence of P.W.1, the father of the victim it has come on record that P.W.1 paid Rs.20,000/- and Rs.22,000/- in cash along with ornaments and utensils as dowry at the time of marriage. P.W.1 had spoken of another Rs.50,000/- which was demanded by the appellant and he was unhappy because of delay in making the payment. On the date of the incident when he was informed that his daughter expired, he rushed to the house of his daughter and found the victim lady was lying on a cot. He also found nail mark injuries on her throat and her left hand in fractured condition. None of the inmates of her in-law’s house were present there but only the local people was there. Thereafter, P.W.1 lodged a complaint before the concerned Police Station. 21. P.W.7, Dr. Sudhangshu Barman, Medical Officer also deposed that bruise marks were seen in front of throat and in the stomach violet coloured poison was also seen. 22. Accordingly, I am of the view that the evidence on record shows that the housewife was subjected to torture over demand of dowry which continued till she suffered unnatural death at her matrimonial home and therefore, cruelty and harassment upon the victim in her in-law’s house by the husband 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. Hence, I uphold the conviction of the appellant under Sections 498A/306 of the Indian Penal Code and bail bond of the appellant is cancelled and he is directed to surrender forthwith before the trial court. 23. Coming to the issue of sentence of Prosenjit Biswas, I find that the incident occurred on 22nd December, 2003 and the appellant is on bail. 23. Coming to the issue of sentence of Prosenjit Biswas, I find that the incident occurred on 22nd December, 2003 and the appellant is on bail. Under the facts and circumstances of this case, sentence imposed upon the appellant is modified to the extent that the appellant is sentenced to suffer rigorous imprisonment for five years instead of seven years for the offence punishable under Section 306 of the Indian Penal Code and to pay a fine of Rs.1000/-; in default to suffer further rigorous imprisonment for three months. He is also sentenced to suffer rigorous imprisonment for two years for the offence under Section 498A of the Indian Penal Code and both the sentences under Sections 306 & 498A of the Indian Penal Code shall run concurrently. 24. 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. 25. Accordingly, the appeal is dismissed. 26. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 27. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.