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2019 DIGILAW 78 (CAL)

GOPAL SAHA v. STATE OF WEST BENGAL

2019-01-17

RAJARSHI BHARADWAJ

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JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment and order dated 26th June, 2014 passed by the learned Additional Sessions Judge, 5th Court, Barasat, North 24-Parganas in S.T. No. 3(8)12 arising out of S.C. No. 1(6)12 corresponding to New Town P.S. Case No. 241 dated 7th September, 2010 convicting the accused/appellants for the offence punishable under Section 498A of the Indian Penal Code and sentencing them to suffer simple imprisonment for three years and also to pay fine of Rs. 1000/- each; in default to suffer simple imprisonment for another one month. 2. The fact of the case in brief is that one Ratan Rajbanshi of Netaji Pally, Jagatpur, father of the victim lodged a complaint to the New Town Police Station alleging that his daughter Ranita was married with Gopal Saha, son of late Sailen Saha of Nutan Pally, New Town P.S. on 19th February, 2009 according to Hindu rites and customs and in their marriage Rs. 50000/- in cash, gold ornaments, furniture and various utensils were given as dowry. His daughter was residing at her in-law's house but after one month of her marriage, her husband and mother-in-law started torturing on her physically and mentally. It was further alleged that his daughter sometimes used to come to his house and stated such fact. However, on 2nd June, 2010 Ranita gave birth to a daughter, but after birth of her daughter, the accused persons increased the grade of torture on her and as a result, she was compelled to commit suicide on 7th September, 2010 at 10.45 a.m. by hanging. 3. On the basis of the written complaint, a criminal case, being New Town P.S. Case no. 241 dated 7th September, 2010 was initiated. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 498A/306/34 of the Indian Penal Code against the accused persons, who pleaded not guilty and claimed to be tried. 4. Learned advocate for the appellant submitted that there were contradiction between the statements of P.W.1 and P.W.3, being the father and mother of the deceased regarding time, place and manner of the occurrence. Moreover, the deposition of the complainant was not corroborated his evidence with the contents of the First Information Report. He further submitted that P.W.2 and P.W.4 were the independent witnesses, but P.W.2 was declared hostile. Moreover, the deposition of the complainant was not corroborated his evidence with the contents of the First Information Report. He further submitted that P.W.2 and P.W.4 were the independent witnesses, but P.W.2 was declared hostile. Though P.W.2 was the material witness in the instant case, he did not support the prosecution case. The evidence of P.W.4 was hearsay evidence as he heard the incident from his wife, but his wife was not a witness in the instant case. P.W.5 was the formal witness who had got no personal knowledge regarding the case. He has relied on the decision of the Hon'ble Supreme Court of India in the case of State of Himachal Pradesh vs- Trilok Chand & Anr. reported in, (2018) 1 Crimes(SC) 79 , wherein it was held that, "in view of discrepancies in prosecution case and contradictions in statements by prosecution witnesses, the accused cannot be convicted." 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 a short period of her marriage, as evident from the First Information Report. So, in view of provision under Section 113A of the Indian Evidence Act, 1872, it could be presumed that the victim committed suicide in consequence of abatement by the accused persons. He further submitted that evidence as to the torture upon the victim by the appellants has been proved by the prosecution witnesses. He further argued that as the victim was subjected to cruelty by the accused persons, she put to end her life leaving her suckling baby. He further submitted that no reason was stated for commission of suicide in their examination under Section 313 of the Code of Criminal Procedure. Therefore, it is presumed that prior to committing suicide, she was subjected to cruelty by the accused persons. P.W.1 and P.W.3, who were the parents of the victim, were the best witnesses whose evidence could be treated as direct evidence because they came to know the manner of torture upon the victim by the accused persons. Thus, he prayed for dismissal of the appeal. 6. Heard learned advocates for the parties and perused the impugned judgment. 7. P.W.1 and P.W.3, who were the parents of the victim, were the best witnesses whose evidence could be treated as direct evidence because they came to know the manner of torture upon the victim by the accused persons. Thus, he prayed for dismissal of the appeal. 6. Heard learned advocates for the parties and perused the impugned judgment. 7. In the instant case the prosecution examined as many as five witnesses out of seven witnesses in the charge sheet to prove the charge of cruelty. 8. P.W.1, Ratan Rajbanshi, complainant as well as the father of the victim stated in his evidence that his daughter was married with Gopal Saha on 19th February, 2009 and at the time of marriage he gave Rs. 50,000/- cash as dowry to Gopal Saha and some gold ornaments and other articles. After one month of marriage her husband and mother-in-law started torturing her physically and mentally for bringing money from him as dowry. He came to know the torture from his daughter when he used to visit her occasionally. He requested her to make adjustment with her husband and in-laws. Subsequently, his daughter gave birth to a child. On 7th September, 2010 his daughter committed suicide by hanging due to torture inflicted by her husband and mother-in-law. The child of his daughter stayed with him. He submitted written complaint, which was written by his neighbour Susanta Mondal as per his instruction. 9. During cross-examination P.W.1 stated that he did not lodge any complaint against the accused persons prior to death of his daughter regarding alleged torture. He did not mention in his complaint as to torturing upon his daughter by the accused persons for bringing more money as dowry. 10. P.W.2, Sunil Majumder, neighbour, who was an independent witness, was declared hostile by the prosecution. 11. P.W.3, Shipra Rajbanshi, mother of the victim stated in her evidence that her daughter Ranita was married with accused Gopal on 19th February, 2009 according to Hindu rites and at the time of marriage gold ornaments and articles were gifted to her daughter and also Rs. 50,000/- twice was given to her son-in-law as demand of dowry. After one month of her daughter's marriage, the husband and mother-in-law started torturing upon her daughter demanding more dowry. 50,000/- twice was given to her son-in-law as demand of dowry. After one month of her daughter's marriage, the husband and mother-in-law started torturing upon her daughter demanding more dowry. Subsequently, they increased torturing upon her daughter and being unable to bear the torture both physically and mentally by her husband and mother-in-law, her daughter committed suicide by hanging at her matrimonial home on 7th September, 2010. She stated that the female child of her daughter was under her custody. Police interrogated her about the incident of this case and she identified both the accused persons. 12. During cross-examination P.W.3 stated that she could not say the specific dates, months and year when husband and mother-in- law tortured upon her daughter. She did not state to the Investigating Officer during interrogation that as per demand of the accused they were compelled to give Rs. 50,000/- to the accused as dowry. 13. P.W.4, Kajal Mondal, neighbour of the accused stated that Ranita used to stay beside his house with her in-laws. She committed suicide by hanging at her matrimonial home on 7th September, 2010 within one and half years of her marriage. When Ranita used to visit his house, she used to complain to his wife that she was being tortured by her husband and mother-in-law regarding dowry. 14. P.W.5, Projati Ranjan Biswas, Sub-Inspector of New Town Police stated that he received one complaint on 7th September, 2010 from Ratan Rajbanshi and accordingly, he started New Town P.S. Case no. 241 dated 7th September, 2010 under Section 498A/306/34 of the Indian Penal Code against the accused persons. 15. On close reading of the evidence on record it appears that it was the specific case of the prosecution that cruelty was made by the accused persons/appellants upon the victim Ranita, for which she had to commit suicide in her in-law's house within a short period of her marriage. As discussed above, P.W.1, P.W.3 and P.W.4 stated that the victim was tortured by the appellants and regular demand of further dowry could not be fulfilled by the victim's father resulting in suicide by the victim lady. 16. 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. 16. 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." 17. 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 learned Trial Judge held that cruelty upon the victim in her in-law's house had been proved by the prosecution but that cruelty was not sufficient to establish abetment. It is admitted fact that Ranita committed suicide but the prosecution failed to prove beyond reasonable doubt that such suicide was the result of instigation came from the side of the accused persons. Therefore, the prosecution failed to prove the offence punishable under Section 306 of the Indian Penal Code. Accordingly, the accused persons/appellants were convicted for the offence punishable under Section 498A of the Indian Penal Code. 18. Reliance has been placed by learned advocate for the appellants in the case of State of Himachal Pradesh vs- Trilok Chand & Anr. which is not applicable in the instant case, as the discrepancies of the prosecution case and contradictions in the statement of the witnesses are not fatal for the case. 19. Hence, I uphold the order of conviction of the appellants under Section 498A of the Indian Penal Code. Therefore, bail bond of the appellants is cancelled and they are directed to surrender forthwith before the trial court. 20. 19. Hence, I uphold the order of conviction of the appellants under Section 498A of the Indian Penal Code. Therefore, bail bond of the appellants is cancelled and they are directed to surrender forthwith before the trial court. 20. Coming to the issue of sentence of the appellants, I find that both the appellants are in bail and no other criminal cases are pending against them. Under the facts and circumstances of this case, sentence upon the appellants is modified to the extent that the appellants are sentenced to suffer rigorous imprisonment for two years instead of three years for the offence punishable under Section 498A of the Indian Penal Code and to pay fine of Rs. 1000/- each; in default to suffer simple imprisonment for another one month. 21. 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. 22. Accordingly, the appeal is dismissed. 23. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 24. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.