Calcutta High Court (Appellete Side)
Ajoy Sharma & Anr vs State Of West Bengal on 18 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.A. 242 of 2006
Ajoy Sharma & Anr.
-vs-
State of West Bengal
Ms. Mayukhi Mitra. ...Amicus Curiae
Mr. Subir Banerjee. ...For the State.
Heard on : 12.8.2014 & 18.08.2014
Judgment on : 18.08.2014.
Joymalya Bagchi. J.
None appears on behalf of the appellants to prosecute the matter.
Ms. Mayukhi Mitra, learned advocate, is requested to appear as
amicus curiae to assist the Court.
This appeal is directed against the judgment and order dated 29th
and 30th March, 2006 passed by the learned Additional District and Sessions
Judge, Fast Track Court-III, Barrackpore, North 24-Paraganas convicting the
appellants for commission of offence punishable under Sections 498A/304B of
the Indian Penal Code and sentencing them to suffer rigorous imprisonment for
seven years for the offence punishable under Section 304B of the Indian Penal
Code and to suffer rigorous imprisonment for three years and to pay fine of
Rs.1,000/- each in default six months S.I. for the offence punishable under
Section 498A of the Indian Penal Code. Both the sentences will run concurrently.
The prosecution case against the appellants is as follows;
On 20.6.2004, Sanjoy Sharma, P.W.1 lodged a complaint with the
Bidhannagar North Police Station alleging that his sister Binita Sharma was
married to appellant no.1, Ajoy Sharma in 2000 and subjected to mental and
physical torture by the husband and other in laws' on demands of further dowry.
It is further alleged that during her lifetime the victim was sent to the parental
home by the husband and in laws' whenever they wanted money. The defacto
complainant tried to reconcile the matter but failed. Subsequently, they
physically tortured the victim and threatened to kill her. Earlier general diary
was registered against appellant no.1 Ajoy Sharma at Kashipur Police Station.
On 20.6.2004 due to unbearable torture, she committed suicide. On the
aforesaid complaint, First Information Report being Bidhannagar North Police
Station Case No.90 dated 20.6.2004 was started under Section 498A/304B/34 of
the Indian Penal Code against the appellants and three sisters in laws' viz., Pinki,
Mamata and Sima. Charge sheet was filed against the appellants under Sections
498A/304B/34 of the Indian Penal Code. The sisters in laws were discharged.
The case being a sessions triable one was committed to the Court of Sessions,
North 24-Paraganas and subsequently transferred to the learned Additional
District and Sessions Judge, Fast Track Court-III at Barrackpore for trial and
disposal. Charge was framed under Section 498A/304/34 of the Indian Penal
Code. Prosecution examined as many as 20 witnesses and exhibited number of
documents. The defence of the appellants was innocence one and false
implication. It was the specific defence of the appellants that the victim was
suffering from mental and/or psychosis diseases and had an affair with P.W.4,
Ranjit before her marriage. In order to probablise such defence, the defence
examined four witnesses. In conclusion of trial, the learned Trial Judge convicted
the appellants for the offences punishable under Section 498A/304B of the
Indian Penal Code and sentencing them to suffer rigorous imprisonment for
seven years for the offence punishable under Section 304B of the Indian Penal
Code and to suffer rigorous imprisonment for three years and to pay fine of
Rs.1,000/- each in default six months S.I. for the offence punishable under
Section 498A of the Indian Penal Code. Such judgment and order has been
appealed against.
Ms. Mitra, amicus curiae, submitted that the demands of dowry have
not been proved beyond reasonable doubt. Independent witnesses have not been
examined in this case although they were cited in the charge sheet. She further
submitted that there was absolutely no allegation of torture by appellant no.2
upon the victim. She accordingly, prayed for setting aside the order of judgment
and order for conviction and sentence.
Mr. Banerjee, learned Additional Public Prosecutor submitted that the
victim committed suicide within four years of her marriage. The suggestions
given by the appellants as to mental instability or affair with P.W.4 are not borne
out from the materials on record. On the other hand, there is the consistent
evidence of the prosecution witnesses that she was subjected to torture inflicted
on demands of dowry. He submitted that the relations of the victim cannot be
said to be partisan but most probable witnesses of the incidents in the life of the
victim. He accordingly prayed for dismissal of the appeal.
An analysis of the prosecution witnesses shows that P.Ws.1 and 3 are
the brothers and sister of the victim. P.Ws.5 and 8 are the parents of the victim.
P.W.12 is her sister. P.Ws.4, 6 and 7 are neighbors and landlord of the defacto
complainant. P.W.9 is the scribe of the First Information Report. P.W.10 is the
friend of the scribe. P.W.11 is police personnel who was posted at Kashipur Police
Station and has proved the endorsement on the general diary dated 12.10.2003,
exhibited in this case against the appellant no.1. P.W.13 is a police personnel
who brought the dead body for post mortem examination. P.W.14 is another
police personnel who was posted at Kashipur Police Station and proved the fact
that a complaint was lodged by deceased Binita at the said police station and the
endorsement thereon. P.W.16 is the Ward Master of the Bidhannagar Sub
Divisional Hospital. P.W.17 is the Executive Magistrate who held the inquest over
the dead body. P.W.18 is the Doctor who held post mortem over the victim and
proved the cause of death as hanging and ante mortem in nature. P.Ws.19 and
20 are the Investigating Officers of the case.
P.W.1, Sanjoy Sharma is the brother of the victim who stated that the
victim married Ajoy on 5.7.2000 according to Hindu Rites and Customs. He
stated that from the wedlock, twins were born and the expenses were borne by
the family of the victim. He stated that she was subjected to mental and physical
torture on demands of further dowry. He stated that she was driven out from the
matrimonial home after being assaulted by her in laws. On 10.6.2004 when
P.W.1 last went to the matrimonial home, she found her in weeping condition
and she wanted to say something. P.W.5, the father of the victim went to the
matrimonial home but the appellants did not allow the victim to come to the
parental home. On 19.6.2004, the victim telephoned P.W.1 and wanted to say
something and requested him to take her to parental home on 21.6.2004. But
she died due to hanging on 20.6.2004. He proved the First Information Report
lodged in the instant case. He also stated that during the lifetime, the victim had
lodged a general diary at Kashipur Police Station. He stated that police seized the
general diary in course of investigation. In cross-examination, he rebutted the
suggestion that the appellants were falsely implicated and the First Information
Report was a manufactured document.
P.W.3 is the other brother of the victim Binita. He stated that at the
time of marriage, Rs.41,000/- was given as dowry along with gold ornaments and
utensils. During 'Gahana' ceremony, further demands were made. She was
tortured due to demands of further dowry. The victim narrated such torture to
the witness. Twins were born to the couple on 31.7.2003 and expenses were
borne by the family of the victim. On 7.10.2003, she was driven out from the
matrimonial home. On 10.10.2003, P.Ws.1 and 5 took her to the matrimonial
home and had a talk with her in laws. On 12.10.2003, general diary was lodged
by the victim. On 10.6.2004, P.W.1 had gone to the matrimonial home and found
that the victim was weeping and had wanted to say something. On 17.6.2004,
P.W.5 went to the matrimonial home but appellants did not allow the victim to
come back to the parental home. On 20.6.2004, she committed suicide.
P.W.5 is the father of the victim who stated that the marriage took
place at his native village and Ranjit Das (P.W.4) was invited and attended the
marriage. Dowry of Rs.41,000/- in cash, gold and silver ornaments, clothing and
other articles were given as dowry. During the 'Gahana' ceremony, further
demands of dowry were made. As the demands could not be fulfilled, she was
subjected to torture and driven out from the matrimonial home. Twins were born
to the couple and all expenses were borne by P.W.5. On 7.10.2003, she was
again driven out from the matrimonial home with the children. On 10.10.2003,
P.Ws.1 and 5 took the victim to the matrimonial home but they were threatened.
On 12.10.2003, general diary was lodged against the appellant no.1. On
10.6.2004when P.W.1 went to the matrimonial home, the appellant no.1 became angry. P.W.1 found that the victim was crying. On 17.6.2004 when he went to the matrimonial home and wanted to bring her back and requested the appellant no.2 to allow the daughter to come back. Such request was turned down. The victim committed suicide on 20.6.2004 due to torture. In cross examination, he reiterated that he paid dowry of Rs.41,000/-.
P.W.8, the mother of the victim has corroborated the evidence of P.Ws.1, 3 and 5. P.W.12 is the sister also spoke of physical and mental torture on demands of further dowry. She stated that she heard such torture from the deceased.
P.Ws.4, 5 and 6 are the neighbors and the landlord of the P.W.5. They have corroborated the incident of torture upon the victim. The cause of death has been proved as ante mortem hanging by the evidence of P.W.18. In cross- examination, P.W.18 rebutted suggestion that the victim was suffering from psychosis or any mental disease.
Defence witnesses, particularly, D.W.1 has stated of pre-marital affair between the victim and P.W.4. In cross-examination he, however, stated that he was resident of Mominpur and not the area where the victim resided.
It appears from the evidence of P.Ws.1, 5, 8 and 12 that dowries had been given at the time of marriage. However, further demands of dowry had been made and as the same remained unfulfilled, the victim was subjected to torture. She was driven out from the matrimonial home and gave birth to twins. Thereafter, again she was driven out on 7.10.2003. General Diary was lodged on 12.10.2003. On 10.6.2004, when P.W.1 went to the matrimonial home, he found the victim was weeping. The victim wanted to say something but due to fear could not say anything. It is also stated that on 17.6.2004 when P.W.5 went to the matrimonial home to bring back the victim, he was resisted by the appellants. P.W.1 stated that on 19.6.2004, the victim telephoned him and wanted to say something and wanted him to take her back on 21.6.2004. On 20.6.2004, she died due to ante mortem hanging.
These aspects of the prosecution case have been proved beyond reasonable doubt by the aforesaid witnesses. Cross-examination has not dented the credibility of such witnesses. Minor contradictions here and there do not go to the root of the prosecution case and I am of the considered view that persistent torture on the victim till her very last day has been proved beyond reasonable doubt. The evidence of torture has also probablised through the independent witness viz., P.Ws.4, 6 and 7. The cause of death has also been proved as ante mortem hanging which is unnatural. Such death occurred in the matrimonial home within seven years of marriage. The evidence of P.Ws.1 and 5 clearly show that soon before the death, the victim was found weeping and the appellant no.1 was found in an angry mood. Hence, I am of the view that the prosecution has proved that the victim was subjected to torture and ill treatment on demands of dowry soon before her death. The rules raised on behalf of the defence, however, are of little substance. It was contended that the other charge-sheeted witnesses have not been examined and the prosecution proved its case only on the basis of the relation witnesses. I am unable to accept such proposition. Firstly, one cannot treat the relatives of a victim house wife as partisan witnesses. They are the most natural witnesses of the events which occurred in the matrimonial life of the unfortunate lady. It is most likely that she would confine in persons of confidence and not to outsiders or strangers. Secondly, in the facts of the instant case, the allegations of torture have been corroborated by the evidence of the neighbours and the landlord of P.W.5. They have categorically stated that the victim was subjected to torture on demands of dowry. Hence, it is trite law that quality and not quantity of evidence is relevant to bring home a charge. The quality of evidence led by the prosecution is convincing as to torture soon before the death of the victim on demands of further dowry. Accordingly, I am of the considered opinion that non-examination of the charge sheeted witnesses do not shake the foundation of the prosecution case and the same ought not to be disbelieved on that score alone.
Desperate pleas as to pre-marital affair or mental psychosis of the victim as cause of suicide have been raised on behalf of the defence. It is the specific defence case that the victim had an affair with P.W.4 and was unhappy being given in marriage to the appellant no.1. No such suggestion has been made to either P.W.4 or to P.W.5, the father of the victim. Such case has been sought to be probabilised through the evidence of D.W.1 who was not even the resident near the parental home of the P.W.1 and a most unlikely witness to be aware of such pre-marital affair. It is also on record that P.W.4 was invited in the marriage of the victim with the appellant no.1 at the native place of P.W.5. Such fact clearly militates against the defence version that P.W.4 had a pre-marital affair with the victim. If that were true, then he (P.W.4) would never have been invited to her marriage which took place at the native place of P.W.5. The case of mental psychosis of the victim has also not been probabilised in the instant case and all suggestions to that effect have been stoutly denied by prosecution witnesses.
The next moot question is the extent of involvement of the appellants. The appellant no.1 was the husband and it appears from the general diary dated 12.10.2003, Ext.3 lodged by the victim herself during her lifetime that the allegations of torture in the general diary is against the appellant no.1. There is no whisper of any allegation of torture against appellant no.2 in the general diary. That apart, on 10.6.2004 the appellant no.1 was found in an angry mood and the victim was weeping and wanted to say something to P.W.1. The solitary strand of evidence against the appellant no.2 is that on 7.6.2004, he had not permitted P.W.5 to take back the victim. I am afraid that such piece of evidence in the entire conspectus of prosecution case, particularly in view of the complete silence as to the role of appellant no.1 in the torture meted to the victim as reflected in the general diary lodged by the victim in her life time (Ext.3), as aforesaid, cannot be held to be convincing enough to come to a conclusion that the appellant no.2 subjected the victim to torture soon before her death on demands of further dowry and, therefore, can be held guilty of the charges levelled against him. It must be borne in mind that the sisters in laws, whose role in the torture of the victim transpires from the general diary have been discharged from the cases. The appellant no.1, however, stands on different footing, inasmuch as he has been portrayed the main perpetrator of torture and ill treatment upon the victim in the general diary and also in the subsequent events in the life of the victim till her death.
For the aforesaid reasons, I am of the view that the conviction of the appellant no.1 for commission of offences punishable under Section 498A/304B of the Indian Penal Code is justified and is upheld. The conviction and sentence upon the appellant no.2, however, is set aside and he is acquitted of the charges levelled against him. The appellant no.2 be discharged from his bail bonds.
The appeal is partly allowed.
Lower court records along with a copy of the judgment be forthwith sent down to the concerned trial court.
I record my appreciation for the able assistance extended by Ms. Mitra as amicus curiae to the Court in the instant case.
Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.
(Joymalya Bagchi, J.)