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2025 DIGILAW 203 (CAL)

Ajit Mahara v. State of West Bengal

2025-05-07

PRASENJIT BISWAS

body2025
JUDGMENT : Prasenjit Biswas , J. 1. The instant appeal has been directed against the judgment and order of conviction passed by the learned Additional District Judge, Suri, Birbhum, in connection with Sessions Case No. 168 of 1988 finding these appellants guilty for Commission of the offence punishable under Section 498A of Indian Penal Code and sentenced them to rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to undergo further period of rigorous imprisonment for one month. 2. In short campus the story of the prosecution is delineated hereunder: The de-facto complainant lodged a written complaint before Sainthia Police Station on 22/23.09.1985 and narrated that his eldest daughter Lilarani Mahara was given in marriage with this appellant/convict Ajit Mahara on 9th Baisak 1392 B.S. This de-facto complainant paid dowry as per agreement but could not deliver one gold ornament for ear and he took one year’s time. Hardly 2/3 months had passed away, her husband along with his family members started torture upon the victim on the plea of non-payment of balance dowry and the victim was not allowed to visit her father’s house, though several attempts were made for arranging her visit. It is further stated in the written complaint that after marriage the victim was once permitted i.e. on the day of ‘Jamaisasti’ to visit her father’s house. The victim was subjected to physical and mental torture by her husband, bhasur (elder brother of the husband of the deceased) and mother-in-law. Wife of the de-facto complainant visited the house of her daughter to bring her but she was not allowed. This de-facto complainant received information from the father-in-law of his brother at Simuliahut that his daughter had taken poison, hearing this incident he rushed to the spot and on the way he found her daughter was being carried by a cot. Body was taken to Sainthia hospital and on the way the victim narrated to him that the torture was unbearable for non-payment of gold earring for which she took poison. In the late night, the daughter of the de-facto complainant expired in the hospital. On the basis of the complaint, case was started by the concerned police station. After completion of investigation police submitted charge-sheet against this appellant along with two others who expired during the pendency of this appeal. 3. In the late night, the daughter of the de-facto complainant expired in the hospital. On the basis of the complaint, case was started by the concerned police station. After completion of investigation police submitted charge-sheet against this appellant along with two others who expired during the pendency of this appeal. 3. The learned Trial Court framed charge under Sections 306 and 498A of the Indian Penal Code against these appellants. 4. In this case prosecution has examined eleven (11) witnesses and documents were marked exhibits in its favour. 5. Neither any oral nor any documentary evidence was adduced on behalf of the defence. 6. Mr. Sujoy Sarkar, learned Advocate for the appellant submitted that the Trial Court has failed to appreciate the facts and circumstances of the case and came to an erroneous finding. He argued that there are major discrepancies in the prosecution case which was overlooked by the learned Trial Court. It is said by the learned Advocate that the oral evidence as adduced by the side of the prosecution is too weak to support the prosecution case inasmuch as the specific part played by each of the appellants/convicts in the death of Lilarani Mahara. The involvement of these accused persons with the alleged offence has not been established. The attention of this Court is drawn by the learned Advocate to the deposition of PW1 who happens to be the father of the victim deposed that during six months, his daughter visited his house only once in the day of ‘jamaisasti’, whereas PW2 mother of the victim stated that she had been to the house of her daughter for bringing her back in their house after few days in Asar, 1392 B.S. PW5 stated that after marriage Lila visited their house on ‘jamaisasti day’ and in the written complaint it is stated that Lila was allowed only once to visit her father’s house during the son-in-law’s day and had spent this son-in- laws’ day on that place. So, as per submission of the learned Advocate there are apparent contradictions in respect of last visit of the victim at her parents’ house. 7. It is said by the learned Advocate that PW1 at the time of deposition said about no specific allegation of torture by the appellant upon his daughter. Moreover, it is said that FIR was lodged on 22.09.85 at 10.25 hrs. 7. It is said by the learned Advocate that PW1 at the time of deposition said about no specific allegation of torture by the appellant upon his daughter. Moreover, it is said that FIR was lodged on 22.09.85 at 10.25 hrs. but in the written complaint it was stated that the de-facto complainant came to police station at about 10.30 A.M. whereas in inquest report time is mentioned at about 7 A.M. which is before the lodging of FIR. It is further said by the learned Advocate that PW1 stated that her daughter was in stage of speaking few words and in that condition she said that she took poison for non-delivery of gold earring. The victim said to this witness when they arranged a rickshaw and proceeded to Sainthia, whereas PW2, mother of the victim said that she saw the victim on the way to hospital. PW4 stated that he saw Lila in the rickshaw with her father on her way to hospital. Attention of this Court is further drawn by the learned Advocate for the appellant to the deposition of PW4 where in cross-examination he said that Lila was in coma stage and had no power to speak which is contradictory to the deposition of PW1. Moreover, as per submission of the learned Advocate that it would appear that PW4 deposed that he found Lila on her way to hospital at about 9 P.M. accompanied by this appellant Ajit Mahara along with others. So, husband of the victim has tried his level best to save the life of the victim. It is said by the learned Advocate that PW5 stated in cross-examination that there was an oral agreement by which the father of the victim agreed that within a period of one year he would pay the balance dowry which is contrary to the deposition of PW4 wherein that PW4 stated in cross-examination that the terms were reduced in writing and the parties signed accordingly. PW1 stated that the dowry was not reduced in writing but it was oral. So, there are contradictory statements in respect of agreement in between PW4 with PW1 and PW5. As per submission of the learned Advocate that PW11, a Medical Officer attached to Sui Sadar Hospital in his cross-examination stated that no injury was detected on observation and dissection on the body of the victim. So, there are contradictory statements in respect of agreement in between PW4 with PW1 and PW5. As per submission of the learned Advocate that PW11, a Medical Officer attached to Sui Sadar Hospital in his cross-examination stated that no injury was detected on observation and dissection on the body of the victim. So, it is said that the entire story of the prosecution regarding infliction of torture upon the victim physically and mentally by the appellants is quite false and the prosecution has been hopelessly failed to bring home the charge leveled against the appellants. 8. It is further assailed by the learned Advocate that the prosecution has failed to prove the ingredients of Section 498A of Indian Penal Code and as such, the conviction and sentence passed against the appellants/convicts are not sustainable under the law particularly after discharging the appellants from the principal charge under Section 306 of the Indian Penal Code. Moreover, as per submission of the learned counsel for the appellant that the Investigating Officer has not been examined in this case which caused serious prejudice to the defence of this case and no explanation has been given by the side of the prosecution as to why the Investigating Officer in this case was not examined by the prosecution. So, as per submission of the learned Advocate there are apparent contradictions in the statements of these witnesses as well as lacuna in the investigation process and as such, the conviction and sentence passed by the learned Trial Court is not sustainable under the provision of law and the same may be set aside. Reliance has been placed by the learned Advocate for the appellant upon the decisions rendered by the Hon’ble Apex Court in the case of Shivanand Mallappa Koti vs State of Karnataka reported in (2007) 5 SCC 197 ; Tarun vs State of West Bengal reported in 2003 0 SCC (Cri) 1052 ; and Girdhar Shankar Tawade-vs- State of Maharashtra reported in (2002) 5 SCC 177 . 9. Ms. Faria Hossain, Ld. APP, learned Advocate for the State argued that the learned Trial Court has taken the evidences and after going through the materials on record passed the impugned judgment and order. There is no illegality and material irregularity in the impugned judgment and order of conviction. 9. Ms. Faria Hossain, Ld. APP, learned Advocate for the State argued that the learned Trial Court has taken the evidences and after going through the materials on record passed the impugned judgment and order. There is no illegality and material irregularity in the impugned judgment and order of conviction. The learned Trial Court was convinced about the involvement of the present appellants with the alleged offence and after being satisfied with the involvement of these appellants in the present offence the court passed the impugned judgment and order of conviction. The evidence of torture upon the deceased by these appellants is overwhelming and there is no reason to discard the evidence of the prosecution witness. The evidences which are brought on record by the prosecution sufficiently proved that there was physical and mental torture upon the deceased and due to such unbearable torture inflicted upon the victim she committed suicide. It is said by the learned Advocate that the prosecution has been able to establish the offence against the accused person committed under Section 498A of Indian Penal Code. There is nothing illegality in the impugned judgement and order of conviction for which it warrants interference. 10. I have considered the rival submissions advanced by both the parties. Perused the materials gathered in the record. 11. In this case, the marriage of the victim with this appellant is undisputed. It is also undisputed that the victim faced an unnatural death. Over the death of the victim a complaint was lodged by the de- facto complainant (PW1) stating that these appellants used to inflict torture upon his daughter physically and mentally on demand of one gold ornament for ear. Due to such unbearable torture the victim committed suicide. It appears from the First Information Report that it was reported on 22.09.1985 at about 10.25 Hrs. but in the written complaint it is stated that on that date he came to police station at about 10.30 A.M. The inquest report states otherwise. S.I., Sainthia Police Station was engaged in preparing the inquest report on the dead body of the victim on the said date at about 7 A.M. which is before the time of reporting the incident before the police station as it would appear from the First Information Report. S.I., Sainthia Police Station was engaged in preparing the inquest report on the dead body of the victim on the said date at about 7 A.M. which is before the time of reporting the incident before the police station as it would appear from the First Information Report. PW1, father of the victim stated in his evidence that all the three accused persons used to torture his daughter by using filthy languages, by assaulting and by keeping herself without food, but no specific allegation of torture against the appellants were mentioned. It is further said by this witness that when his daughter was carried to Simuliahut then he was preparing to go the house of his daughter and from Simuliahut he arranged a rickshaw and proceeded to Sainthia with his wife and at that time the victim was in a stage of speaking and uttered few words. The victim reported that she took poison only for non-delivery of gold earring but she did not mention about any torture allegedly inflicted by the appellants. PW2, mother of the victim stated that she saw the victim on the way to hospital, whereas PW 4 stated in his cross-examination that at that time Lila was in coma stage and had no power to speak which is contradictory to the depositions of PW1 and PW2. So, from the evidences of PW1, PW2 and PW4 it could not be ascertained as to whether the victim was in a position of speaking and whether at all she stated anything to her parents. 12. The father of the victim (PW1) stated that at the time of marriage of his daughter he gifted Rs. 2000/- in cash, radio and five pieces of utensils and the dowry was not reduced into writing but it was oral. But the said statements as stated by the PW1 were contradicted by PW5 in his cross-examination, wherein he stated that the agreement was oral. PW4 stated that the terms were reduced in writing and the parties signed accordingly. So, there is doubt as to whether the agreement was reduced into writing or it was oral. PW1 stated that during six months of marriage his daughter visited his house only once in the ‘jamaisasti day’ with this appellant. PW4 stated that the terms were reduced in writing and the parties signed accordingly. So, there is doubt as to whether the agreement was reduced into writing or it was oral. PW1 stated that during six months of marriage his daughter visited his house only once in the ‘jamaisasti day’ with this appellant. Whereas PW2, mother of the victim stated that she had been to the house of the victim for bringing her back in their house after few days in Asar 1392 B.S. but the accused persons refused to send her daughter in their house on the plea that unless the unpaid dowry i.e. gold earring was not delivered, the victim would not be sent to their house. PW4 deposed that the members of the in-laws’ family of the victim used to torture upon her on the point of non- payment of balance dowry and attempts were made by the father (PW1) for bringing her in her father’s house but on all the occasions, the proposal was refused. Whereas PW5 stated that after marriage the victim visited their house on ‘jamaisasti day’. In the written complaint it is stated by the de-facto complainant that the victim was allowed only once to visit her father’s house during the son-in-laws’ day and have spent the son-in-laws’ day at that place. So, it would appear from the contentions of the FIR as well as from the depositions of PW1, PW2 and PW5 that there are contradictions regarding last visit of the victim to her father’s house. It would be evident from the contentions of the written complaint wherein it is stated that torture and assault perpetrated by the members of the victim’s in-laws’ family was known to the next-door people of the victim’s in-laws’ i.e. Narayan Chandra Mahara, Nibaran Mahara, Balaram Bagdi and other persons who are not cited by the prosecution as witnesses in the case. 13. PW3 stated nothing regarding death of the victim. He was declared hostile by the prosecution and cross-examined this witness. On cross- examination nothing was elicited which may help the prosecution to prove its story. This PW3 was cross-examined by the defence wherein he stated that there is no torture from the side of the accused persons upon the victim. 14. PW3 stated nothing regarding death of the victim. He was declared hostile by the prosecution and cross-examined this witness. On cross- examination nothing was elicited which may help the prosecution to prove its story. This PW3 was cross-examined by the defence wherein he stated that there is no torture from the side of the accused persons upon the victim. 14. PW4 stated in his examination-in-chief that he saw the victim in the rickshaw with her father on her way to hospital but in cross- examination he stated that he found the victim on her way to hospital at about 9 P.M. and this appellant being the husband and Dulal, Bishu etc. accompanied the victim to the hospital and on that time, victim was in a coma stage and had no power to speak, whereas PW1 stated that he arranged a rickshaw and proceeded to Sainthia with PW2 and at that time the victim was in state of speaking and uttered few words somehow and the victim reported that she took poison only for non- delivery of gold ear ring. So, doubt has been casted as to whether the victim was in position to speak something and whether actually she stated something to PW1 or not. It would be evident from the cross- examination of PW4 that he found the victim on her way to hospital accompanied by Ajit and others. PW2, mother of the victim stated in cross-examination that she saw her daughter on the way to hospital. So, it is doubtful as to whether PW1 actually arranged a rickshaw and proceeded to Sainthia with his wife. 15. In the written complaint it is stated that hardly 2/3 months had passed after the victim had gone to her in-laws’ house after her marriage pressure was being put on her to realise a gold ring as early as possible but PW1 stated that he took time till one year and the torture started within six months. Although, it is stated by PW1 that all the accused persons started to inflict torture upon his daughter but no specific allegation of torture allegedly inflicted by each of the accused person has been mentioned. 16. PW6, brother of the victim stated in his deposition that his parents and grandfather visited his sister in-laws’ house for bringing her in their house but this witness could not state any specific date and time. 17. 16. PW6, brother of the victim stated in his deposition that his parents and grandfather visited his sister in-laws’ house for bringing her in their house but this witness could not state any specific date and time. 17. PW7 stated that the inquest report does not disclose the actual cause of death. PW10, Medical Officer stated that he could not say anything without consulting injury register that when and how the deceased was brought to primary health centre. PW11, the doctor who held post- mortem examination of the victim stated that no injury was detected on observation and dissection. 18. PW4 only stated that he heard about torture upon the victim from the grandfather of Lila who is no more in the world. PW5 stated in the same voice of PW4 that he heard from his father and boudi that member of the in-laws’ house of the victim used to torture her and assault her on the plea of non-payment of balance dowry. So, these witnesses have no direct knowledge about the alleged torture allegedly inflicted by the appellants. PW9 stated that he heard that torture was made by the husband upon the victim. 19. I have already stated that there was doubt about the last visit of the victim to her father’s house. PW1 and PW5 stated that the victim visited her father’s house on ‘jamaisasti day’. Whereas PW2, mother of the victim stated that after marriage the victim visited the house only in the month of Asar. PW9 stated that several attempts were made from the father’s house of the victim for bringing back the victim but it was not succeeded. This PW9 stated that he heard from the parents of the deceased that the victim took poison as the torture allegedly inflicted upon her was not bearable. This witness further said that he heard that torture was made by the husband of Lili. So, what this witness said is hearsay. This hearsay evidence is to be excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination. 20. 20. The Investigating Officer of this case has not been examined and the best reason known to the prosecution for his non examination. No explanation has been given by the side of the prosecution for non- examination of the Investigating Officer and this caused serious prejudice to the defence. 21. There is allegation by the de-facto complainant that this appellant along with his family members demanded gold ear-ring from him and failure of giving such gold ornament the appellants started to inflict torture physically and mentally upon the victim and as a resultant effect the victim faced an unnatural death. The said demand of gold earring was bereft of any details like the dates on which the demand of dowry was made and mental or physical cruelty was committed on the victim. There was no specific allegation about the alleged acts of dowry demand and cruelty on the each of the appellants. So, cryptic allegations without any elaborations as to what short of torture was made can never be trusted. To convict the person under Section 498A of Indian Penal Cone there must be evidence to prove that wilful conduct of the person drove an woman to commit suicide or to cause grave injury or danger to limb or health (mental or physical). Absolutely, there was no evidence in this case that the victim faced unnatural death due to wilful conduct of these appellants. Similarly, there is no specific allegation of torture stated either in the written complaint or in the deposition of the witnesses. There is no complaint either by the parents of the victim or the victim herself during her lifetime regarding the constant torture as allegedly inflicted by this appellant and his family members before the police station or before any appropriate authority. I have already stated that there are apparent contradictions in the statements of the witnesses which lead to disbelieve the case of the prosecution. So, the conviction and sentences of these appellants/convicts under the charge under Section 498A Indian Penal Code is not sustainable under the eye of law. 22. In view of the facts and circumstances and discussion made above, I am of the opinion that the judgment and order of conviction passed by the learned Trial Court finding the appellant guilty for committing offence punishable under Section 498A of the Indian Penal Code is liable to be set aside. 23. 22. In view of the facts and circumstances and discussion made above, I am of the opinion that the judgment and order of conviction passed by the learned Trial Court finding the appellant guilty for committing offence punishable under Section 498A of the Indian Penal Code is liable to be set aside. 23. Thus, the present appeal be and the same is hereby allowed. 24. The judgment and order passed by the learned Trial Court in connection with Sessions Case No. 168 of 1988 (Sessions Trial No. 1 of February, 1992) dated 06.04.1992 is hereby set aside. 25. The appellant is on bail. He is discharged from bail bonds and set at liberty if he is not wanted in connection with any other case. 26. The Trial Court Record along with the copy of this judgment be sent down to the learned Trial Court immediately. 27. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.