Calcutta High Court (Appellete Side)
Raju Bayen vs State Of West Bengal on 18 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 387 of 2011
Raju Bayen
Vs.
State of West Bengal
For the Appellant : Mr. Sukdeb Chatterjee, Adv,
Amicus Curiae : Mr. Partha Pratim Das, Adv.
For the State : Mr. Arun Kumar Maiti, learned A.P.P.,
Ms. Sudip Ghosh, Sr. Govt. Adv.
Mr. Anjan Dutta, Adv.
Heard on : January 18, 2018
Judgement on : January 18, 2018
Joymalya Bagchi, J. :
The appeal is directed against the judgement and order dated 29th June, 2011 passed by the learned Assistant Sessions Judge, Bishnupur in Sessions Case No. 4 (5) 07 [Sessions Trial No. 1 (10) 07] convicting the appellant for commission of offence punishable under Sections 498A/306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default, to suffer further 2 simple imprisonment for two months for the offence punishable under Section 498A IPC and to suffer rigorous imprisonment for eight years and to pay fine of Rs.5,000/-, in default, to suffer further simple imprisonment for five months for the offence punishable under Section 306 IPC, both the sentences to run concurrently.
The prosecution case as alleged against the appellant and other accused persons is to the effect that the victim, Bilasi Bayen was married to the appellant on 22nd Magh, 1408 B.S. as per Hindu rites and customs. From the wedlock Bilasi gave birth to a son and daughter. After the marriage, she was subjected to mental and physical torture by the appellant, her father-in-law, Ananda Bayen, mother-in-law, Chhabi Bayen and brother- in-law, Mrityunjoy Bayen. Bilasi silently bore such torture expecting that things would improve in future. On several occasions her parents intervened in the matter and requested the accused persons not to torture her but they paid no heed. On 17th January, 2007 unable to bear the torture she consumed poison at her matrimonial home and died at Arambagh Hospital. On the next day, Narayan Dhak (PW1) lodged complaint against the appellant and other accused persons being Kotulpur Police Station Case No. 10/07 dated 18th January, 2007 under Sections 498A/306/34 IPC. In conclusion of investigation, charge-sheet was filed against the appellant and three other accused persons. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Assistant Sessions Judge, Bishnupur for trial and disposal. Charges were framed under Sections 498A/306/34 IPC. The appellant and other accused persons pleaded not guilty and claimed to be tried. In the course of trial, 3 prosecution examined 19 witnesses and exhibited a number of documents. The defence of the accused persons was one of innocence and false implication. It was the specific plea of the accused persons that there was jealousy between victim-Bilasi and her sister namely, Babita Bayen (PW13), who were married into the same family and over such domestic dispute, the victim committed suicide. In conclusion of trial, the trial Judge by the impugned judgement and order dated 29th June, 2011 convicted and sentenced the appellant, as aforesaid. However, by the selfsame judgement and order, the other accused persons were acquitted of the charges levelled against them.
At the time of admission of appeal, rule for enhancement of sentence imposed on the appellant was issued. Hence, the appeal along with the rule are heard together.
Mr. Chatterjee, learned Counsel appearing for the appellant, argued that the evidence of the prosecution witnesses does not establish cruelty on the victim-housewife for or in connection with demand of dowry. He further argued that the evidence relating to torture on demands of dowry or otherwise suffers from various contradictions and exaggerations. He also argued that death of the victim occurred seven years after marriage and, therefore, presumption under Section 113A of the Evidence Act is not attracted in the facts of the case. Hence, he prayed for acquittal of the appellant.
Mr. Das, learned Counsel appearing as amicus curiae, supported the contentions of Mr. Chatterjee.
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Mr. Maity, learned Additional Public Prosecutor along with Mr. Dutta, learned Counsel appearing for the State submits that the evidence of the relations of the victim proved that she was subjected to continuous torture on demands of dowry. On the date of the incident, over a flimsy domestic issue the victim was severely assaulted and throttled by the appellant and unable to bear such torture she committed suicide. Hence, the appeal is liable to be dismissed.
P.W 1 is the father of the victim and de facto complainant in the instant case. He deposed that on 22nd Magh, 1408 B.S. as per Hindu rights and customs the victim was married to the appellant. It was an arranged marriage and gold ornaments along with a cycle, a wrist watch and money were given in that marriage. After marriage she started to reside at her matrimonial home. The accused persons expressed dislike about the articles, ornaments and money given at the time of marriage and subjected her to torture on demand of more money. Mother-in-law and dewar of the victim, Bilasi assaulted her. He went to the matrimonial home of his daughters to settle that matter. He informed the para people about the torture upon Bilasi. But his efforts did not yield any result and Bilasi consumed poison on 3rd Magh, 1413 B.S. Son and uncle of the appellant informed him about the incident at about 5P.M. They went to Arambagh SD Hospital but could not meet her. Bilasi died at 11/11.30A.M. on that night. On the next day one police officer prepared the inquest over the dead body of Bilasi. He signed on the inquest report. One learned Executive Magistrate held inquest over dead body of Bilasi and prepared a report in his presence. He signed on that inquest report also. A son and daughter were born to his 5 daughter from the marriage with the appellant. They are residing with him at present. He proved the written complaint lodged by him. He put his signature thereon marked as Exhibit-1/1. In cross-examination, he stated that son of Bilasi was born two years after birth of her daughter.
P.W. 16, Joydeb Nandi, is the scribe of the first information report in the instant case. He deposed that he knew Bilasi as well as her father. Bilasi was married to the appellant. Bilasi had died. He wrote the first information report as per instruction of P.W. 1. He proved the first information report marked as Exhibit-1.
P.W. 9, Kartick Bag, is the cousin of P.W. 1. He deposed that Bilasi and Bobby were sisters. Bobby was married to Bikash Bayen whereas Bilasi was married to Raju Bayen. Bikash and Raju were brothers. Both were married on 22nd Magh, 1408 B.S. After marriage, the sisters started residing in their matrimonial home. Bobby is residing at her father's house since the death of her sister Bilasi. Bilasi was assaulted regularly at her matrimonial home by the appellant. She complained of such assault upon her when she used to visit her father's house. Raju assaulted Bilasi even on the date of her death. Bilasi committed suicide by consuming poison on 3rd Magh within a period of six years from her marriage. She died at Arambagh Hospital.
P.W. 10, Shamyapad Santra, is the son-in-law of P.W. 1. His wife Doli Santra is the elder sister of Bilasi and Boby. Bilasi and Bobby were married on 22nd Magh, 1408 B.S. They resided at their matrimonial home with their husbands and other in-laws. Husband of Bilasi was the appellant. Bilasi died on 3rd Magh, 1413 B.S. Bilasi and Bobby told him that the appellant 6 used to assault Bilasi. They were in the habit of demanding money and ornaments from Bilasi. The matter was informed to the gram panchayat but to no avail. On the date of incident he went to the hospital. Bilasi died in the hospital. He put his signature on the inquest report.
P.W. 11, Smt. Badal Maji, is the aunt of Bilasi who stated that Bilasi died at her matrimonial home.
P.W. 12, Bablu Dhank, is the son of P.W. 1. He stated that Bilasi and Bobby were married on the same date but he could not remember the exact date. Those were arranged marriage. Bilasi married to the appellant and Bobby was married to Bikash Bayen. Bikash and Raju were brothers by relation. They started residing at their matrimonial home with their families. Bilasi died six years after her marriage. The appellant created problems with Bilasi demanding more money and ornaments. Appellant assaulted Bilasi on such score. On the date of the incident the appellant had assaulted Bilasi and tried to throttle her. As a result, she consumed poison and died at the Arambagh Hospital. After death of Bilasi, Bobby was driven out from her matrimonial home.
P.W. 13, Smt. Babita Bayen, was the sister of Bilasi. She stated that she was married to Bikash Bayen, brother of the appellant. Bilasi was married to the appellant on the same day. They started living in the same matrimonial home. She gave dowry and ornaments as per demand of the appellant and other in-laws at the time of marriage. But the appellant demanded more money and asked her to bring it from her father. As she failed to meet the demand, appellant used to torture Bikash. On 3rd Magh at 10A.M. Bilasi was cutting cabbage for cooking at her matrimonial home. A 7 piece of hair was found in the cabbage to which their mother-in-law told that the two sisters would hypnotise them. Thereafter the appellant assaulted Bilasi. Bilasi wanted to return to her father's house. The appellant prevented her from doing so and tried to throttle her. As a result, she consumed poison. There was mark of throttling on her throat. After consuming poison, Bilasi asked for a glass of water. The appellant prevented her from giving her water to Bilasi stating that she would be falsely implicated if she gave water to Bilasi. Appellant and others took Bilasi to the hospital. Bilasi died in the hospital. She remained in the matrimonial home for four days after death of Bilasi. She was driven out of her matrimonial home. In cross-examination she was confronted with her previous statement to the investigating officer with regard to the incidents on the date of the incident.
P.W. 8, Bikash Bayen, is the husband of Boby Bayen. He deposed that ten years ago he and his brother Raju married Bobby and Bilasi. They started residing in a joint family. Two months after marriage he separated. On the date of the incident, he went outside for work. Returning therefrom to his home he heard that Bilasi died by consuming poison. There was no discord in their family.
P.W. 14, Dr. Ashoke Kumar Das, did not find any external injury on the victim. He opined that the death of the victim was due to consumption of poison He proved the post-mortem report.
P.W. 2, Sri Kamalakanta Chattopadhyay, was the Deputy Magistrate- cum-Deputy Collector of Arambagh Hospital, who conducted magisterial inquest over the dead body of the victim while P.W. 17, Proshanta 8 Bhattacharyya, an ASI of Police, held the inquest over the victim. Both of them proved the inquest reports.
P.W. 19, Sandipan Chatterjee, was the investigating officer in the instant case.
D.W. 1, Raghupati Digar, was the Pradhan of the gram panchayat. He proved the birth certificate of Supriya Bayen (Ext. A) wherein her date of birth was noted as 03.09.2001. He also proved the birth certificate of Kartik Bayen, son of the victim, Exhibit-B which showed his date of birth as 01.08.2003.
Firstly, let me consider whether the unnatural death of the victim occurred within seven years of her marriage. While P.W. 1 and other witnesses claimed that she was married on 22nd Magh, 1408 B.S. i.e. 5th February, 2002, it appears from Exhibit -A that her daughter was born on 3rd September, 2001. Hence, it appears that the prosecution witnesses have not stated the correct date of marriage of the couple. On the other hand, P.W. 8 brother of the appellant, who was married to Bobby (P.W. 13), another sister of the victim, on the same date deposed that they had been married ten years prior the date of his deposition. His deposition had been recorded in 2008 and, therefore, it appears that the appellant was married to the victim in 1998. Bobby, P.W. 13, however, stated that both the sisters had given birth to their first child around one year after marriage. As the children were born in 2001, if her version is believed, the victim may have been married in the year 2000.
In the light of the contradictory versions emanating from the mouths of the prosecution witnesses as to the date of marriage, I am of the opinion 9 that the prosecution has not been able to prove the exact date of marriage of the victim so as to establish that she had died within seven years of her marriage. Hence, I hold that it would be unsafe to draw the statutory presumption under Section 113A of the Evidence Act to the facts of the instant case.
Coming to the issue of torture on the victim at her matrimonial home, I find that the evidence of torture upon the victim over demand of dowry suffers from gross improbabilities and/or embelishment. There is no reference of torture of the victim on demands of dowry on the first information report. Evidence of P.W. 1 with regard to torture over demands of dowry appears to have been made for the first time in Court. Evidence of other witnesses in this regard also suffer from embellishments. It is also strange that when the victim and her sister Bobby had been married to the same family, no demand of dowry was made with regard to the marriage of Bobby while dowry was demanded in relation to the marriage of the victim by the appellant. In view of the aforesaid evidence on record, I am of the opinion that the prosecution case that the victim was tortured for or in connection with dowry at her matrimonial home does not pass muster.
Finally, we come to the incident resulting in commission of suicide on the fateful day i.e. 17th January, 2007. According to P.W. 13 there was a domestic quarrel over cutting of cabbage in the matrimonial home of the victim and their mother-in-law had abused them over such issue. Thereupon the appellant assaulted the victim and when she wanted to go to her parental home, the appellant tried to throttle her and prevent her from going home. We note that no mark of injury was found on the body of the 10 victim as appearing from the evidence of post mortem doctor, P.W. 15. It is also important to note that the version of P.W. 13 with regard to domestic dispute over cutting of cabbage and the assault by the appellant on the victim over such issue has been stated for the first time in the Court. Such incident is also singularly absent in the first information report. On the other hand, suggestion was given that there was jealousy between the two sisters and due to quarrel between themselves, the victim committed suicide. In view of the fact that the date of marriage of the victim has not been established with certainty, statutory presumption under Section 113A of the Evidence Act cannot be attracted. In the absence of the said statutory presumption it is incumbent on the prosecution to prove the facts and circumstances which constitute acts of abetment to the commission of suicide of the victim. Evidence of P.W. 13 suffers from gross embelishment when compared to her earlier statement in the Court and her version of assault by the appellant also does not find corroboration from the medical evidence. Hence, I am not inclined to rely o the evidence of P.W. 13 to come to a finding that the appellant had assaulted the victim on the day of the incident resulting her suicide.
Even if her version as to the circumstances leaing to the death of the victim is believed, it is trite law that ordinary domestic squabbles in the matrimonial life of couple in the absence of clear and proof of incitement to commit suicide cannot amount to an offence under Section 306 of the Indian Penal Code particularly when it is not established that such death occurred within seven years of her marriage. In State of West Bengal Vs. Orilal Jaiswal reported in (1994) 1 SCC 73, the Apex Court held as follows :- 11
"If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should not be found guilty."
In view of the aforesaid discussion, I hold that the prosecution has not been able to its prove beyond reasonable doubt. Accordingly, I set aside the conviction and sentence of the appellant. The appellant shall be released forthwith from custody upon executing a bond to the satisfaction of the learned Chief Judicial Magistrate, Bankura, for a period of six months in terms of Section 437A of the Code of Criminal Procedure if he is not wanted in any other case.
In view of the order of acquittal, rule for enhancement of sentence shall be discharged.
The criminal appeal is allowed.
Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
I record my appreciation for the able assistance extended by Mr. Das, learned Counsel appearing as amicus curiae, for disposal of the appeal.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) 12 sdas