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2025 DIGILAW 428 (CAL)

Haradhan Lohar v. State of West Bengal

2025-08-12

AJAY KUMAR GUPTA, RAJASEKHAR MANTHA

body2025
JUDGMENT : 1. The instant appeal is directed against judgment and order of conviction dated 12.12.2013 and 13.12.2013 passed by the Additional Sessions Judge, Bishnupur, Bankura in Session Trial No. 2(07) of 2012 arising out of Sessions Case No. 2(3) of 2012. 2. The appellants were convicted for commission of offences punishable under Sections 498A, 304B read with Section 34 of the IPC and Sections 3/4 of the Dowry Prohibition Act. 3. They were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- each, in default to suffer further imprisonment for 6 months more for the offence punishable under Section 304 B of the IPC; to suffer simple imprisonment for three years and to pay a fine of Rs.2,000/- each, in default to suffer further imprisonment one month more for the offence punishable under Section 498A of the IPC; and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for ten days for the offence punishable under Section 3 of D. P. Act and to pay a fine of Rs.500/-, in default to suffer imprisonment for ten days for offence punishable under Section 4 of the D. P. Act. 4. The third accused, viz. Bankim Lohar, being the father of the appellant no. 1 was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/, in default to suffer simple imprisonment for two months more for the offence punishable offence under Section 304B IPC; to suffer simple imprisonment for three years and to pay a fine of Rs.1000/-, in default to suffer for one month more for offence punishable under Section 498A IPC; to pay a fine of Rs.500/-, in default to suffer simple imprisonment for ten days for the offence punishable under Section 3 of D. P. Act and to pay a fine of Rs.500/-, in default to suffer imprisonment for ten days for offence punishable under Section 4 of the D. P. Act; all the sentences shall run concurrently. 5. The prosecution case in brief is that the victim, Mina Lohar was married to the appellant no. 1 on 28.04.2008. The appellant No.1, appellant No. 2, and her husband, the third accused, used to live together. In course of negotiation for marriage, a sum of Rs.13,000/- was allegedly agreed to be paid by the family of the deceased to the appellants. 1 on 28.04.2008. The appellant No.1, appellant No. 2, and her husband, the third accused, used to live together. In course of negotiation for marriage, a sum of Rs.13,000/- was allegedly agreed to be paid by the family of the deceased to the appellants. Ornaments and a bicycle were also given to the accused by the victim’s family. 6. The alleged payment was recorded in a purported sansapatra referred to as a lagnapatra by two witnesses, namely, PW 1 and PW 12. The said document was never proved effectively, and several doubts arise with regard to its execution. The principal ground is that there is no mention of the same in the complaint lodged by PW 1, scribed by PW 12. PW 13 Dilip Lohar has deposed that when he signed the document, it was blank. 7. Be that as it may, the document appears to have been marked as exhibit on the basis of the evidence of PW 12. 8. It is further the case of the prosecution that on the 3 rd of February, 2011, the victim was assaulted and tortured to the extent that she was driven to consume poison and died. The family of the victim for the first time saw her at the Bishnupur SD Hospital. The doctors had declared her “brought dead”. 9. In course of inquest conducted by a Magistrate, namely, PW 7, no injuries were detected on the body of the victim. None of the witnesses to the inquest, namely, PW 1 and PW 12, indicated to the Inquest Officer that the victim was either tortured or assaulted for being unable to meet the additional demand of Rs. 15,000/- as dowry. The mother and brother of the victim, therefore, had no personal knowledge as the circumstances under which the victim died. 10. The post-mortem report indicated that the victim died by suicide by consuming unidentified substance. While the PM doctor did not state that the viscera or the other parts of the victim’s body was preserved, the evidence of the IO indicates that the viscera was sent for a FSL report. No such report was either collected or produced in the Trial. 11. After inquest and post-mortem, the victim was cremated by her family. A complaint was lodged on the 4th of February, 2011 after cremation. The investigation was completed, and a charge sheet was. 12. No such report was either collected or produced in the Trial. 11. After inquest and post-mortem, the victim was cremated by her family. A complaint was lodged on the 4th of February, 2011 after cremation. The investigation was completed, and a charge sheet was. 12. The trial commenced upon charges being framed by the Additional District and Sessions Judge as follows: “First that you, on or about the 3.2.201lday of a your residence of village Bensulia being the husband of Mina Lohar and other relatives subjected to ghe said Mina Lohar to cruelty and thereby committed an offence punishable under Section 498A of the of the Court of Indian Penal Code, and within cognizance of the court of sessions. Secondly - That you, on or about the and some place committed dowry death Mina Lohar with common intention of the same day of same time by causing the death of all of you and thereby committed an offence punishable under Section 3048 of the Indian Penal Code, and within cognizance of the court of Sessions Thirdly - That you, on or about the 14th nay day of Baikash, 1415 B.S. took dowry from Tanti Lohar and you also demanded dowry from the father of bridegroom the dowry amount of 13,000/- and along with other articles. and thereby committed an offence punishable under Section 3/of D. of the by Indian Penal Code, and within cognizance of the court of Sessions And I hereby direct that you be tried by the said Court on the said charge. The contents of the charges are read over and explained the accd. persons who pleaded not guilty and claimed to be tried.” 13. PW 1, Kartick Lohar, was the complainant, father of the victim. He could not indicate the exact date on which the demand for dowry of Rs. 15,000/- was made or the dates on which, and the exact manner in which, his daughter was tortured. He also could not indicate which of the accused tortured the victim. The evidence of PW 1 to the effect that his daughter committed suicide by consuming poison, unable to tolerate such torture, cannot be given much credence by this Court. 14. PW 1 was not present at such time and place where the alleged torture occurred. There is, therefore, no causal connection established between the alleged torture and the consumption of poison by the victim. 15. 14. PW 1 was not present at such time and place where the alleged torture occurred. There is, therefore, no causal connection established between the alleged torture and the consumption of poison by the victim. 15. PW1 further deposed that one Sasthi Lohar, his nephew, informed him of the death of the victim at village Kulupukur. The family of the victim lived at Kharbangla Village, which is at a distance of 20 to 30 kilometers. He further deposed that the marriage was solemnised between the victim and the accused no. 1 on the same night after the negotiation took place in the afternoon, which appears to be rather unusual. 16. He deposed for the first time in Court and had not informed the police or the Magistrate that he had gone to the marital house of the victim on many occasions and was assured by the accused no. 1 that he would not inflict any torture on the victim. 17. This is contradicted by the evidence of PW 12 who stated that the victim had told him while visiting his house about the alleged torture inflicted by the accused persons and the alleged assurance of the accused No.1.The story of alleged torture over a period of time by the accused persons on the victim is not proved in clear and uncertain terms with appropriate details of time and dates. This witness is deemed unreliable by this Court. 18. PW 2 was Swapan Lohar, the neighbour of the accused persons, who was declared hostile. 19. PW 3 was Shyama Pada Lohar, the brother of the victim. Except for making a bland allegation of demand of an additional 15,000/- rupees by the accused persons from the husband and in-laws of the victim, he has not indicated how he has come to know of the same. He deposed that he got information that the victim was being assaulted on 3rd February, 2011 over the telephone, but did not indicate who called or informed him. He deposed that the telephone call was received on the phone of his elder brother, PW 12. He admitted that he stated this for the first time in the trial that his brother informed him over the phone that the victim was assaulted by her in-laws on that day. The said fact was not informed to the police. The evidence of PW-3 is, therefore, hearsay and unreliable. 20. He admitted that he stated this for the first time in the trial that his brother informed him over the phone that the victim was assaulted by her in-laws on that day. The said fact was not informed to the police. The evidence of PW-3 is, therefore, hearsay and unreliable. 20. PW4, Pushpa Lohar, was the mother of the deceased. Her evidence clearly indicates that the allegation of assault on the victim and the appellant for an additional Rs15,000/- dowry is not to her personal knowledge. She has not indicated who informed her of the same. She also deposed that she came to know of the death of the victim from one Sasty Lohar, who was not examined by the prosecution as a witness. The evidence of PW-4 is therefore only partly reliable. 21. PW5, Ramesh Lohar, was a co-villager. He deposed that the victim was subjected to torture, but did not indicate how he came to know of the same. His evidence is hearsay, similar to that of PW1, 3 and 4. The deposition that the accused no.1 assured the father of the victim that he would stop harassing and torturing the appellant, was not made in his presence. He deposed that he came to know of the death of the victim from PW-12 and PW-13. He admitted in course of cross-examination that he had not informed the Investigating Officer during the investigation of any such assurance by the appellant No.1 that he would stop torturing the victim. He deposed as such for the first time in course of trial. The evidence of PW-5 is hearsay and even otherwise not reliable. 22. PW-6, Bholanath Lohar, admitted that he lived in Kharbangla at a distance of 20-23 kilometers from the village of the victim and the accused. The source of his knowledge of the factum of the appellant no.1 assaulting the victim and the victim visiting her father’s house and staying there for a day, cannot be to his personal knowledge. He also deposed that he came to know of the death of the victim from Sasthi Lohar, who informed PW12. He did not, therefore, have personal knowledge of the incident. He further deposed that PW12 was informed of the death of the victim at 9:30 A.M. on the date of occurrence, and he proceeded to Bishnupur S. D. Hospital thereafter. He also deposed that he came to know of the death of the victim from Sasthi Lohar, who informed PW12. He did not, therefore, have personal knowledge of the incident. He further deposed that PW12 was informed of the death of the victim at 9:30 A.M. on the date of occurrence, and he proceeded to Bishnupur S. D. Hospital thereafter. PW12 found the victim after searching at least an hour or two. PW12 thereafter returned to his residence. PW-6 went to Bishnupur Hospital at 11:00 A.M. on the same day. The evidence of this victim is therefore not reliable. The evidence of PW-6 is, therefore, hearsay and cannot be relied upon. 23. PW-7, Nishith Kumar Ganguli, was a Magistrate who conducted the inquest. He confirmed that there were no injury marks found on the dead body, in course of inquest of the victim. No statement was made by any of the witnesses as regards the cause of death. 24. PW-8 was one Debojyoti Sharma, who claimed to have performed the marriage ceremony of the victim with the appellant no.1. 25. PW-9, Raju Shek, was a barber. He participated in the ceremony of marriage of the victim with the appellant no.1. 26. PW-10, Bhonda Lohar, was a co-villager of Kulupukur village. He deposed that the victim and the appellant no.1 had a child. The child was, at the time of trial, in the custody of the appellant no.1. 27. PW-12, Milan Lohar, was the elder brother of the victim. He deposed in evidence that the victim narrated to him of the additional demand of Rs.15,000/- as dowry on the victim by the accused persons. He deposed that in default of payment of Rs.15,000/-, the victim would be tortured more by the accused. The victim is also stated to have informed PW12 that the accused persons asked the victim to consume poison to kill herself, enabling the accused no.1 to marry again. 28. The aforesaid evidence must be in the context of deposition in cross-examination. He stated in cross- examination that the appellant no.1 and the victim visited his house at Kharbangla, Loharpara, on a regular basis several times a year. The allegation of torture, demand of additional dowry and the alleged instigation of the victim to commit suicide by poison appear to be rather inconsistent with the regular periodical visits of the victim and her husband to the house of PW-12. The allegation of torture, demand of additional dowry and the alleged instigation of the victim to commit suicide by poison appear to be rather inconsistent with the regular periodical visits of the victim and her husband to the house of PW-12. 29. He further deposed that he was informed by one Sasthi Lohar that the victim was assaulted by the accused no.1, both on the previous night and on the date of occurrence. The evidence of PW-12 is, therefore, hearsay. The call records and the mobile phone of PW-12 were not seized by the police or presented during the course of investigation. If the aforesaid facts are true, they ought to have been disclosed before the Magistrate who conducted the inquest. The evidence of the Magistrate (PW-7), therefore, has thrown serious doubts on the allegation of assault on the victim on the night of 2 nd February, 2011 and 3 rd February, 2011. PW-7 has confirmed that no information was given by PW-12 as to the cause of death of the victim. The evidence of PW-12, therefore, is partly unreliable and cannot be accepted by this Court. 30. PW13 was Dilip Lohar, who knew the victim. He deposed that a blank document was signed by him, which was being shown as a Lagnapatra in Court. 31. PW-14, Gurupada Sutradhar, is a Police Constable, who sent the body of the victim for post-mortem from the place of inquest within the Hospital. 32. PW-15, Pachu Gopal Sarkar, is a retired ASI of Police, who also conducted an independent inquest on the body of the victim. He thereafter prepared a dead body challan of the victim and sent it for post-mortem. He also confirmed that there were no external injuries found on the body of the victim in course of the inquest and that PW-12 and other witnesses of this inquest also did not indicate the cause of death despite being specifically asked. 33. PW-16, Sk. Anamul Haque was the Investigating Officer of the case. He deposed about the sequence of investigation and the filing of the charge-sheet. 34. The accused persons were thereafter examined under Section 313 of the Code of Criminal Procedure by the learned Magistrate. They denied all the circumstances presented to them. 35. Based on the evidence on record, the Trial Court has convicted and sentenced the accused persons as indicated hereinabove. 36. 34. The accused persons were thereafter examined under Section 313 of the Code of Criminal Procedure by the learned Magistrate. They denied all the circumstances presented to them. 35. Based on the evidence on record, the Trial Court has convicted and sentenced the accused persons as indicated hereinabove. 36. This Court has carefully considered the evidence on record and the arguments advanced by the learned counsel for the appellants as well as the State. 37. Insofar as the charge under Section 304B of the IPC, this Court notes that the Sessions Judge framed the same on the basis of an alleged previous incident of assault, on the 3rd of February, 2011 only, as the cause for the victim to have committed suicide. None of the alleged previous allegations of torture or assault are therefore relevant to bring home this charge against the accused. 38. This Court firstly notes that there is absolutely no evidence from any of the prosecution witnesses having seen any assault on the victim immediately before the date and time of occurrence. The proof of the said particular assault would constitute a vital ingredient to constitute an offence under Section 304B of the IPC. The said section mandates that there must be an assault which should be an immediate provocation for the victim to have committed suicide by consumption of poison. 39. The framing of the charge under Section 304Bwould itself indicate that any or all of the alleged incidents prior to the 3 rd February, 2011 albeit not clearly proved by any of the witnesses for the prosecution, cannot be taken into consideration. There being no evidence at all of the alleged prior assault on the 3rd of February, 2011, the charge under Section 304B of the IPC must automatically fail. The conviction and sentencing of the accused, including the two appellants, must therefore be deemed as erroneous and liable to be set aside. 40. Insofar as the charge under Section 498A is concerned, this Court finds that the only documentary evidence of the taking of dowry is the Lagnapatra. The said document was allegedly executed prior to marriage. There is no clear unimpeachable evidence of the demand of the additional dowry of Rs.15,000/-, much less any evidence at all of the charge of mental or physical torture. The said document was allegedly executed prior to marriage. There is no clear unimpeachable evidence of the demand of the additional dowry of Rs.15,000/-, much less any evidence at all of the charge of mental or physical torture. On the contrary, the evidence of PW12 in cross-examination indicates extremely cordial relations between the accused no.1 and the victim on one side and PW-12 on the other side. 41. The appellant no.1 and the victim visited PW-12 on every other festive occasion and on a regular basis. In the event of any bad blood between the accused No.1 and the family of the victim, the aforesaid visits by the accused No.1 and the victim to the house of PW-12 would not have occurred at such frequent intervals. The evidence of PW 13 that he signed on a blank piece of paper suggests that the document was prepared later. 42. The prosecution has withheld the most vital evidence of Sasthi Lohar, who could have shed some light on the circumstances under which the victim committed suicide. The prosecution has not indicated why he could not be produced as a witness in the Trial. It is not known whether the IO PW16at all examined him in course of investigation. An adverse inference is therefore called for against the prosecution in this regard. 43. This Court further notes that none of the prosecution witnesses mentioned the accused no.2 in course of their evidence of any acts and omissions leading to the offences under Section 498A, 304B of the IPC or under Section 3 and 4 of the Dowry Prohibition Act. The charge under Section 34 of the IPC has not even been remotely proved. There is no evidence on record of any assault by the appellant no.2 and the third accused. 44. The conviction of the appellant No.2 on any charge whatsoever, therefore, is not sustainable on the evidence on record. Such conviction is liable to be set aside. 45. There is yet another curious fact that is noticed by this Court. The marriage between the appellant no.1 and the victim was negotiated in the afternoon and was performed on the same night in great haste and urgency. While the aforesaid may not be impossible, the marriage between the appellant no.1 and the victim appears to be under unusual circumstances. 46. The marriage between the appellant no.1 and the victim was negotiated in the afternoon and was performed on the same night in great haste and urgency. While the aforesaid may not be impossible, the marriage between the appellant no.1 and the victim appears to be under unusual circumstances. 46. What appears clearly as the last nail in the coffin to the prosecution case, are the inquest and post-mortem reports. The Inquest officer has clearly recorded that PW1 and PW12 were witnesses to the Inquest did not indicate to him the circumstances in which and who was responsible for, death of the victim. The PM report only has illegible and undecipherable scribbles in 90% of its columns. It is next to impossible to read such scribbling. This Court has been able to read, with great difficulty, only the column, the cause of death in the post- mortem report. The PM doctor PW17has deposed that the victim died of suicide due to the consumption of an unknown substance. He has not stated that any viscera was preserved. A copy of the post mortem report is extracted hereunder:- 47. The I.O. has stated that the viscera was sent to the FSL. It is therefore not known what exactly was sent to the FSL if at all. The FSL Report was never collected or placed in evidence in the Trial Court. The actual cause of death of the victim is still, therefore, shrouded in mystery. 48. In the backdrop of the aforesaid evidence, the conviction of the appellants cannot be sustained either in fact or in law and is liable to be set aside. It is submitted by the counsel for the parties that the third convicted person has undergone a sentence of seven years and has been set free thereafter. 49. The appeal is allowed. The conviction and sentencing of the appellants is set aside. 50. In view of disposal of the appeal, connected applications, if any, are also disposed of. 51. The appellants shall be released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the Trial court, which shall remain in force for a period of six months in terms of Section 481 of the BNSS, 2023. 52. The TCR, along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 53. 52. The TCR, along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 53. Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities.