Calcutta High Court (Appellete Side)
Sankar Rana & Ors vs State Of West Bengal on 10 May, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi C.R.A. 204 of 2016 with C.R.A.N. 1422 of 2016 Sankar Rana & Ors.
-Vs-
State of West Bengal
For the Appellants : Mr. Siladitya Sanyal,
Mr. Arindam Jana,
Mr. Sougata Banerjee
For the State : Ms. Anusuya Sinha
Heard on : 10.05.2016
Judgement on: 10.05.2016
Joymalya Bagchi, J. :-
The appeal is directed against judgement and order dated 10th & 11th day of March, 2016 passed by the learned Additional Sessions Judge, 2nd Court, Contai, Purba Medinipur convicting all the appellants for commission of offence punishable under Section 498A IPC and appellant no.1 under Section 307 IPC and sentencing the appellants to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three months more for the offence punishable under Section 498A IPC and appellant no.1 to suffer rigorous imprisonment for seven years for the offence punishable under Section 307 IPC, both the sentences to run concurrently.
The prosecution case as alleged against the appellants is to the effect that the victim, Gayatri Rana was married to the appellant no.1 as per Hindu rites and customs on 23rd Baisakh 1410 B.S. Few days after the marriage she was subjected to mental and physical torture on the allegation that the dowry gifts were of low quality and pressure was created to bring Rs.20,000/- as further dowry from her father. From the said marriage a female child was born to the couple. After the birth of female child, the torture upon the housewife increased. On 16th January, 2012 around 9:00 A.M. while the appellant no.1 was going to the medicine shop, he demanded money from the victim and when she refused he threatened that he would remarry and assaulted her with fists and blows. The other appellants instigated him to kill her and appellant no.1 wrapped a nylon rope around the neck of the de-facto complainant and tried to kill her and kicked her on the lower part of the abdomen. Thereafter, they drove the victim along with her minor child out of the house. The victim was medically treated at Sub-Divisional Hospital, Contai and took shelter at her father's house. Thereafter, her father again brought back the victim to her matrimonial home and a compromise was arrived at. On 11th March, 2012, the appellant no.1 again tried to kill the victim by pressing her neck and the other appellants also assaulted her by fists and blows and drove her out of the matrimonial home. The victim was again treated at Sub-Divisional Hospital, Contai and on 18th March, 2012 she lodged a F.I.R. with Officer-in-charge, Contai Women Police Station resulting in the registration of Contai P.S. Case No. 01 of 2012 dated 18th March, 2012 under Sections 498A/323/307/34 IPC and under Section 4 of the Dowry Prohibition Act. In conclusion of investigation, charge-sheet was filed in the instant case. The case being a sessions triable one was committed to the Court of Additional Sessions Judge, 2nd Court, Contai, Purba Medinipur for trial and disposal. Charge was framed under Sections 498A/323/307/34 IPC against the appellants. The appellants pleaded not guilty and clamed to be tried. In course of trial, prosecution examined as many as 12 witnesses. The defence of the appellants was one of innocence and false implication. The appellants, however, did not examine any witness in support of their defence. In conclusion of trial, trial court by the impugned judgement and order convicted and sentenced the appellants as aforesaid.
Lower court records have been received. By consent of parties, appeal was taken up for hearing dispensing with preparation of Paper book and other formalities.
Mr. Siladitya Sanyal, learned advocate, appearing for the appellants submitted that the evidence of the victim (PW2) suffers from embellishments and contradictions. While in her deposition she did not indicate appellant nos. 2 to 4 in the assault on 11th March, 2012, she named the said appellants in the injury report (Exhibit-3). He further submitted that the incident on 16th January, 2012 has also not been proved beyond reasonable doubt. It is further argued that the allegation of assault on the housewife due to demands of dowry is patently absurd as the husband and other family members had made all arrangements for her child birth at Kolkata and paid the expenses in that regard. It is also submitted on behalf of the appellants that the evidence of PW3 is not supported by any other independent witness. Accordingly, it is submitted that the appeal ought to be allowed and the conviction be set aside.
On the other hand, Ms. Anasuya Sinha, learned advocate appearing for the State, submitted that the evidence of PW3 is consistent and supported by her brother (PW8) and her cousins (PW4 & 6). Allegation of physical assault and attempt to throttle the victim is proved by the medical evidences of PW9, 10 and 12. Accordingly, she prayed for dismissal of the appeal.
The most vital witness in the instant case is the victim herself (PW2). In her deposition she has stated that she was married to appellant no.1 on 23rd Baisakh, 1410 B.S. At the time of marriage, various gold ornaments, cash etc. were given as dowry. One month after the marriage the appellants started torture upon her for non-payment of Rs.20,000/- to the husband for starting a business. The other accused persons also tortured her mentally and physically over such issue. She told her father about such torture. Her father and other relations expressed their inability to make payment. After few days she gave birth to a female child. After the birth of the female child the torture upon the victim increased. On 16th January, 2012 at about 9:00 A.M., appellant no.1 while going to his medical shop demanded money from her. When she expressed inability to bring money, the appellant no.1 threatened her that he will remarry and assaulted her with fists and blows. Appellant no.1 was instigated by other appellants to kill her. Then appellant no.1 wrapped a nylon rope round her neck and tried to kill her. The appellant no.1 also kicked her in the lower part of her abdomen. Upon hearing her cries, the neighbours came to the house. She was driven out of the matrimonial home with the minor child. She went to her father's home and was admitted at Sub-Divisional Hospital, Contai where she stayed for 3 to 4 days. Thereafter, her father, brother and others took her to her matrimonial home where there was a compromise between the parties. Thereafter, she started staying at her matrimonial home again. On 11th March, 2012 at about 8:00 A.M., appellant no.1 again demanded money and over such issue he pressed her neck and tried to kill her. Appellant no.4 kicked her in the abdomen. Appellant nos. 2 and 3 assaulted her with fists, blows and kicks. When she cried out, neighbouring people came and saved her from the hands of the appellants. She again took refuge at her father's house and was admitted to Sub-Divisional Hospital, Contai. On 18th March, 2012, she lodged F.I.R. at Contai Women Police Station (Exhibit-2). In cross-examination, she stated that the scribe of F.I.R. was one, Shiv Shankar Mondal (PW7). She stated that after marriage and before giving birth of child, she came to her brother's house 5/6 times with her husband and stayed there for 2/3 days. She further stated that her husband was always welcomed in her parental home. She deposed after marriage her husband used to love her as well as assault her. She deposed after marriage members of her parental home came twice or thrice to her matrimonial home for settlement of dispute. Girl child was born to her after four years of her marriage. She had a miscarriage in the meantime. Annaprasan ceremony was held after the birth of the child which had taken place four years after marriage. During the Annaprasan festival, her brother gave a gold locket and silver waist chain to the child. She also deposed that at the time of birth of child at Kolkata by a surgical operation her husband and members of the matrimonial home were present and managed the treatment. After treatment at Kolkata, she returned to her matrimonial home.
PW8 is the brother of the victim. He has corroborated the evidence of the victim in all material particulars. He deposed that the marriage took place in the month of Baishak 1410 B.S. One month after the marriage the victim was tortured for non-payment of 20,000/- rupees as dowry. There was a village Salish over the issue but no fruitful result took place. On 16th January, 2012 appellant no.1 tried to kill the victim by wrapping rope around the neck of the victim. Appellant no.1 intended to marry another lady. The victim was ousted from her matrimonial home. She was admitted to Darua Sub-Divisional Hospital where she was treated for three days. After discharge from the hospital she was taken back to her matrimonial home. On 11th March, 2012 the accused persons assaulted the victim by fists, blows and kicks. Thereafter, the victim came back to her parental home and was again medically treated. Presently, the victim is residing at his house. In cross- examination, he admitted that the couple had good relation and a child was born to them. He deposed that he did not go to the hospital when the victim was admitted for childbirth. He admitted that he did not tell the police during interrogation that the appellant no.1 tried to kill the victim by wrapping nylon rope around her neck.
PW4 is a cousin of the victim. PW4 corroborated the evidence of PW2 and stated that on 16th January, 2012, the victim was assaulted bitterly by the accused persons and was admitted at Sub-Divisional Hospital, Contai. He stated that he saw mark of assault on the body of the victim. He took her to the hospital. Thereafter, there was a Salish whereupon the victim came back to the matrimonial home. She was again assaulted on 11th March, 2012. Case was filed at Contai Women Police Station. He was interrogated by the police. He signed on the seizure list (Exhibit-2/1). In cross-examination, he stated that his village is situated 16/17 kms. from the parental home of the victim. He stated that he did not know every household affair of the victim. He deposed that he did not recollect the date on which he heard regarding the assault upon the victim. On 20th January, 2012 after Salish he took the victim to the matrimonial home.
PW6 is another cousin of the victim. He also spoke of physical assault on the victim over demands of more dowry. He stated that the appellant no.1 was having an illicit relationship with one lady, Sushma Das and the victim was assaulted on that score. The victim was brought back from the matrimonial home. Again she was taken to the matrimonial home where she was assaulted and admitted in hospital. He went to the hospital and saw marks of assault on the neck of the victim. In cross-examination, he deposed that the victim was the daughter of his younger aunt. He heard the incident of assault on 16th January, 2012 from the victim in hospital. He stated that he could not say the date on which he was interrogated by the police. He could not remember that he told the police that he saw the marks of injury on the victim's neck.
PW1 is a neighbour of the appellants. She admitted that the victim was married to the appellant no.1. Appellant no.1 has a medical shop. She had heard that the appellant no.1 had extra-marital affairs. She also claimed that she heard that the appellants had inflicted torture upon the victim at the matrimonial home. In cross-examination, she stated that she did not personally witness any physical and mental torture upon the victim.
PW3 is also a neighbour of the appellant. He has not deposed anything about the prosecution case.
PW5, another neighbour was declared hostile while PW7, the scribe, has proved the F.I.R. (Exhibit-1/2) and his signature thereon (Exhibit-1/1).
These are the witnesses of facts.
PW9, PW10 and PW12 are the medical witnesses.
PW9 deposed that he treated the victim and found Ecchymosis in front of her neck
2 inches long and 1/4th inch wide. Pressure by nylon rope suggested. Pain chest. Painful breathing. Fists and blows suggested. Pain and tenderness lower abdomen-bleeding P.V. (Private parts). Bleeding nose, fists and blows suggested. Haematoma scalp 2 inches diameter. Iron rod blow suggested. In cross-examination, he admitted that he had not noted in the injury report that he had received information from the patient. He stated that all the injuries may be caused by accident or by fall on the ground or by blunt substance.
PW10 is another doctor who proved the treatment sheet of the victim (Exhibit-4 series). He deposed that the victim was admitted in hospital for three days and discharged on 18th January, 2012.
PW12 is the doctor who treated the victim on 11th March, 2012 and found the following injuries :-
1) Bruise and abrasion over the abdomen and back.
2) Manual throttling.
3) Kick over the abdomen causing bleeding from vagina.
He proved the injury report (Exhibit-7).
PW11 is the investigating officer of the case who investigated the case and filed the charge-sheet.
From the analysis of the evidence of the prosecution witnesses, particularly PW2, it appears that the victim was married to appellant no.1 on 23rd Baisakh, 1410 B.S. i.e. around 9 years prior to the registration of this case. From her deposition it appears that few months after the marriage she was ill-treated for demand of additional amount of Rs.20,000/- as dowry. Initially, there was a miscarriage and four years after the marriage a girl child was born. After the birth of the girl child, torture upon her increased for demand of more money. There is also evidence that appellant no.1 developed extra-marital relationship and wanted to remarry again. Over such issue on 16th January, 2012 appellant no.1 assaulted her with fists and blows and it is claimed on the instigation of other appellants tried to strangulate her with a nylon rope. She cried out whereupon the neighbours rescued her and she was treated at Sub-Divisional Hospital, Contai where she was admitted for three days. At the behest of her parents and brother there was a compromise and she was brought back to the matrimonial home. Again she was assaulted on 11th March, 2012 by the appellants. Appellant no.1 pressed her neck while other appellants assaulted her on various parts of the body with kicks, fists and blows. She was medically examined by PW12. Her evidence is corroborated by her brother (PW8) and cousins (PWs 4 & 6). They have also spoken of assault by the appellants on the aforesaid dates. Medical evidence of PW9, PW10 and PW12 corroborate presence of injuries on the neck and other parts of the body of the victim.
From the aforesaid evidence on record, I am of the opinion that the allegation that the victim housewife was assaulted by the appellants on 16th January, 2012 and 11th March, 2012 resulting in various injuries on her body has been proved beyond doubt.
It has been argued that there is no independent evidence of local people or villagers corroborating the version of PW2. Assault on a housewife ordinarily occurs within the four corners of the matrimonial house and it is highly unlikely that such incident would be seen by the local people. Evidence of PW2 is corroborated by her relations, PWs 4, 6 & 8 and accordingly, I am of the opinion that it is safe to rely on their evidence particularly in the light of corroborative medical evidence that she was assaulted by the appellants on the aforesaid dates.
The next question which crops up is whether appellant no.1 intended to kill the victim or not. Evidence of PW2 is to the effect that appellant no.1 on the instigation of other appellants sought to strangulate her with a nylon rope. She cried for help and on the intervention of local people the appellants were prevented from putting an end to her life. Similarly, on 11th March, 2012 the appellant no.1 tried to throttle her but as local people intervened he was not successful. Such evidence of PW2 is, however, not supported by local people. No witness of the locality has deposed that they intervened in the course of assault and thereby prevented the appellant no.1 from throttling or strangulating the victim to death. It is true that there are certain injuries on the neck of the victim as appearing from Exhibit-3 and Exhibit-7. However, in the absence of corroboration that the appellant no.1 was unable to kill the victim due to the intervention of the local people, I am unwilling to come to a conclusion that the appellant no.1 had intended to kill the victim in the course of such assault. On the other hand, the nature of the injuries on the victim are superficial and it is highly unlikely that if the appellant no.1 being instigated by other appellants had tried to kill the victim, there would be only simple injuries on her person.
In view of the aforesaid state of affairs, I am of the opinion that although the appellants had assaulted the victim at her matrimonial home causing injuries on her person, their intention was not to kill the victim. However, it can safely be concluded the acts of the appellants clearly fall within the ambit of 'cruelty' as defined under Section 498A IPC.
In the light of the aforesaid discussion, I modify the conviction recorded in the instant case and hold that the appellants are guilty of commission of offence punishable under Section 498A of the Indian Penal Code and appellant no.1, though not guilty of offence under Section 307 of the Indian Penal Code, is also found guilty of the offence punishable under Section 324 of the Indian Penal Code. Conviction of the appellants are accordingly modified.
Coming to the issue of sentence, I am of the opinion that in view of the nature of the offence committed on a housewife this is not a fit case to extend the provisions of Probation of Offenders Act to the appellants. However, the appellants have no criminal antecedents and appellant no.4 is an elderly lady.
Accordingly, I modify the sentence imposed on appellant nos.2 to 4 and direct that they shall suffer rigorous imprisonment for six months and shall pay a fine of Rs.15,000/- each, in default, to suffer simple imprisonment for one month more for the offences punishable under Section 498A IPC. Appellant no.1, however, shall suffer rigorous imprisonment for two years and shall pay a fine of Rs.15,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 498A IPC and shall suffer rigorous imprisonment for three years and pay a fine of Rs.25,000/-, in default, to suffer simple imprisonment for six months more for the offence punishable under Section 324 IPC, both the sentences to run concurrently.
Fine, if realised, shall be paid to PW2 as compensation under Section 357(2) of the Code of Criminal Procedure. Detention suffered by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence of imprisonment in terms of Section 428 of the Code of Criminal Procedure.
With the aforesaid modification, the appeal is disposed of. I find that the appellant nos. 2, 3 and 4 are on bail. Their bail bonds are cancelled and they are directed to surrender within seven days from date before the trial court and serve out the sentence in accordance with law.
In view of disposal of the appeal, the application being CRAN 1422 of 2016 stands dismissed.
The lower court records with a copy of this judgement be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) akd